Government's Opposition to Unseal the Record

1. The defendant's instant motion for access to classified sentencing documents by his new counsel is without legal authority and should be denied. The defendant and his original counsel carefully reviewed the classified documents before sentencing. Since the defendant's sentencing on March 4, 1987, the District Court has properly shielded the classified documents from further disclosure to subsequent defense counsel.

2. Included among the government's voluminous submissions at sentencing were certain classified materials, including the "Top Secret" Declaration of former Secretary of Defense Casper Weinberger (hereinafter the "Weinberger Declaration") (l) By Executive Order 12356,47 Fed. Reg. 14,874 (1982), material is classified "Top Secret" if its unauthorized disclosure reasonably could be expected to cause "exceptionally grave damage" to the national security. (2) The defendant and his two trial attorneys were given full access to these classified submissions before sentencing, as his trial counsel acknowledged.

3. Both pleadings now before this Court seek access to the sealed classified materials on behalf of subsequent counsel and point to the Protective Order's flexibility as justification for such access. In fact, each motion leads with this argument. Of course, this argument overlooks the pretrial context in which the Protective Order was entered. The Protective Order presumes no such right of access for subsequent defense counsel, particularly where such counsel are retained over thirteen years post-sentencing. Indeed, former Chief Judge Robinson, who signed the Protective Order in question, himself denied such a right of access to subsequent defense counsel, interpreting the very order he entered in this case.

4. Eighteen months after sentencing, the defendant retained new counsel who, after obtaining a security clearance sought access to those classified materials for use in preparing the motion to withdraw the guilty plea. (3) The government denied his request. The defendant then moved the District Court for an order permitting access. Relying on analogous cases upholding the denial of access to presentence reports to prepare motions to reduce sentence, the District Court denied that motion. United States v Pollard, 747 F. Supp. 797,806-807 (D.D.C. 1990) (4)

5. "It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500,509 (1964). The Supreme Court has thus recognized the government's "compelling interest in protecting both the secrecy of information important to our national security and the appearances of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. United States, 444 U.S. 507,509 n.3 (1980) (per curiam), quoted in United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989). To protect national-security secrets, the President has promulgated a classification system that strictly controls the dissemination of sensitive information, Executive Order 12356, and Congress has established elaborate procedures to guard against unnecessary disclosure during criminal proceedings, Classified Information Procedures Act, 18 U.S.C. App. 3§1, et.seq.

6. Disclosure of the classified sentencing materials, therefore, cannot be taken lightly. 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. "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." United States v. China National Aero-Technology Import and Export Corp., Criminal No. 99-0353 (D.D.C. 2000) citing United States v. Poindexter, 727 F. Supp. 1470, 1480 n.22 (D.D.C.1989) ("It should be noted...that the wide dissemination of masses of sensitive national security documents does present some risk, a number of lawyers, paralegals, secretaries, and clerks, albeit with security clearances for purpose of this case, would presumably be working on these papers") (5) (a copy of this order is attached).

7. Similarly, the United States District Court for the Eastern District of Virginia in United States v. Kim, Crim. No. 97-117-A (August 7, 2000), recognized the importance of this basic premise. (6) "These documents... Speak for themselves in supporting the government's argument that they should not be disclosed any more than is absolutely necessary. Because we do not find that Kim has established an adequate 'need to know', his request for disclosure will be DENIED, as will be his request for clearances for his two new attorneys and the expert witness." Order at 3, attached to Def. Motion as Exhibit E. Defense counsel attempt to distinguish Kim because counsel there failed to base their motion for access to classified materials upon a possible contemplated application at some time in the future for clemency and/or commutation of sentence. Def. Memo. At 4. Indeed, counsel in the instant case go so far as to assert that defense counsel in Kim were "engaged in a fishing expedition". Id. The Court in Kim, however, recognized the need to restrict access to classified materials.

8. Certainly, present counsel have offered no compelling reason for breaching the secrecy of the classified materials in this case. Instead, they have offered only hypothetical possibilities. Thus, they first assert that thy are "contemplating" seeking executive relief. Def. Memo. At 2. Second they assert that they need access to the sealed materials now because of the mere possibility that those opposing executive relief may cite the sealed materials. (7) Such asserted possibilities cannot possibly justify adding present counsel to the list of those with access to the classified materials.

   Defense Counsel Failed to Establish an Adequate Need for the Classified Materials

9. Defense counsel were denied access to the classified materials for use during their previous Section 2255 appeal in this case. United States v. Pollard, 747 F. Supp. 797, 806-07 (D.D.C. 1990); 959 F.2d 1011 (D.C. Cir. 1992). 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. (8) In considering a clemency request, the President could consult, ex parte, with any of his advisors, including the Director of the Central Intelligence Agency. The defendant's counsel would not have a right to be present or to learn the content of any such communication or even whether such a conversation occurred. Defense counsel have no right of access to classified materials filed with the Court based upon the speculative chance that he might pursue executive relief in the future.

10. The issuance of a security clearance alone does not warrant access to classified documents, for such access must additionally be "essential to the accomplishment of lawful and authorized Government purposes." Exec. Order 12356, § 4.1 (a). There are undoubtedly many individuals in the government with security clearances, who are nonetheless properly barred from viewing the classified submissions in this case. All of the sealed submissions in this case were classified pursuant to Executive Order 12356 and remain classified pursuant to the successor to that provision, Executive Order 12958. (9) As the Court of Appeals for this Circuit has held, "classified information is not discoverable 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).

    Yunis involved disclosure to aid defense counsel preparing for trial. The instant situation involves defense counsel seeking disclosure thirteen years after sentencing. Counsel explicitly disavow any need for the classified materials in connection with their pending Section 2255 motion. Def. Mot. At 2. Where sentencing materials were at one time fully disclosed to the defendant and his trial counsel, a sentencing court may properly refuse disclosure of these materials to a later attorney seeking to attack the sentence. See United States v. Lewis, 743 F.2d 1127 (5th Cir. 1984) (upholding refusal to disclose presentence report to new attorney seeking to prepare motion to reduce sentence); United States v. Bernstein, 546 F.2d 109, 110 (5th Cir. 1977) (no error to refuse to let new counsel see presentence report in order to prepare motion to reduce sentence). Obviously, as discussed above, present defense counsel's hypothesized request for executive relief presents an even less compelling reason for disclosure.

11. Defense counsel do not have a right to discovery nor are even present during the deliberative process following an application for executive relief. See supra at 6 n. 8. The amicus brief suggests that executive review is essentially an "adversarial process," a proposition for which they offer no legal basis. The simple fact that the President's advisors, whom he might consult concerning any future application for executive relief, might oppose such relief where the defendant has pled guilty to espionage - i.e., conspiracy to deliver national defense information to a foreign government, pursuant to 18 U,.S.C. § 794 (c) - does not create an adversarial process. It is not a second trial, and the defendant has no right to learn what, if any, advice the President might seek and obtain from his advisors. The defendant's "continued incarceration" is not a function of anything more than a lawful sentence of the Court. The government does not seek to "handicap" anyone in an entirely discretionary review by the President. Rather, the government's opposition to the instant request is nothing more than the exercise of its legitimate interest in protecting the secrecy of classified materials where a compelling need to know does not exist.

    Request for Expedited Consideration

12. On May 17, 2000, the defendant, Jonathan J. Pollard, retained new counsel. Def. Aff. At 3. Over thirteen years have passed since the defendant was sentenced before former Chief Judge Aubrey E. Robinson, Jr., on March 4, 1987. The articulated basis for the instant motion is "to make a presentation to the outgoing President." Def. Motion at 2. (10) Despite having been retained seven months ago and performing "an extensive review and analysis" of the case, defense counsel have waited until just weeks before the President's term concludes to file the instant motion. (11) The fact that this President will complete his second term and leave office in January 2001 is well known. Counsel fail to identify any barrier to "pursuing other avenues of relief on Mr. Pollard's behalf, including seeking executive clemency and/or commutation of sentence." Def. Aff at 3. (12) If counsel truly believe a fourth application for clemency and/or commutation will be authorized by their client and is in his interests, such an application should have already been made. (13) Moreover, such an application could be made after the next President of the United States takes office. Thus, th need for urgency associated with defense counsel's instant motion is less than clear and, if it does exist, is of their own creation.

WHEREFORE, the United States respectfully requests that the Court deny the defendant's request for access to the sealed, classified materials in this case.

Respectfully submitted,

WILMA LEWIS
UNITED STATES ATTORNEY

By: (Signed) Ronald L. Walutes, Jr.
Assistant United States Attorney
Transnational/Major Crimes Section
D.C. Bar No. 415541
555 Fourth Street, N.W.
Room 5917
Washington, C.D. 200l (202) 514-6966

Footnotes:

1. An unclassified version of this declaration was prepared by Secretary Weinberger at the time of sentencing and placed on the public record. It remains available to present defense counsel.

2. Executive Order 12356 was replaced by Executive Order 12958 in 1995, but does not change the relevant requirements in this area.

3. The mere possession of a security clearance does not confer a right of access to classified materials, the ACLU's contrary assertions notwithstanding. Beyond obtaining the necessary clearances, there still must be a determination that the party seeking access has a genuine need to know the classified information before the party is entitled to review that information. See Executive Order 12958, Part 4.2, published at 60 Fed. Reg. 19825 (April 17, 1995) ("Sec. 4.2 General Restrictions on Access. (a) A person may have access to classified information provided that...(3) the person has a need-to-know the information.")

4. On appeal, the District Court's denial of defendant's Section 2255 motion was affirmed and the denial of access to the classified materials was not disturbed. 959 F.2d 1011, 1032 n.15 (D.C. Cir. 1992) ("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 satisfies us that the error was harmless.")

5. Although the government recognizes that a single defense counsel is seeking access to the classified materials in this instance, such access is sought without demonstrating an adequate need for the materials. If the "need to know" requirement was met where counsel are simply contemplating seeking executive clemency and/or commutation of sentence at some time in the future and speculate that the classified materials were relevant to that application, the "need to know" restriction would be eviscerated. Defense counsel, and their successors , would automatically have a right of access to classified materials post-sentencing in every criminal case. In short, the "wide dissemination" foreseen by the Court in Poindexter is very much applicable where the instant motions seek to remove the need to demonstrate a compelling need to know before access is granted to classified materials.

6. The defendant's reliance upon United States v. Rodriguez, 968 F.2d 130 (2nd Cir.), cert. denied, 506 U.S. 847 (1992), is misplaced. Rodriguez involved a continuing criminal enterprise to distribute crack cocaine and a sealed transcript o a courtroom proceeding, but did not involve any classified materials. Defense counsel, recognizing their inability to demonstrate "a specific showing of need" for th4e sealed materials, cite Rodriguez. The government's opposition to the instant request, however, is not based so much on the Court seal imposed by former Chief Judge Robinson as the reason for that seal, i.e., the classified nature of the material and need to restrict access to it to avoid potential damage to the national security.

7. The amicus brief makes a number of similar speculative assumptions. Failing to address defense counsel's own concession that they are merely "contemplating seeking executive relief", Def. Memo at 2, the ACLU presume such an application and then engage in a series of similarly speculative assertions. See Amicus Brief at 6 ("(i)t is beyond doubt that if the Department of Defense and/or the Department of Justice opposes clemency, they will rely upon that classified information"); at 12 ("an application for clemency..is ...an adversarial process", which the ACLU then attempts to equate to the judicial process); and at 12 ("We assert with complete confidence that the government counsel reviewing Mr. Pollard's application for executive relief will not be satisfied to rely on a discussion with government counsel from 1987...").

8. Article 11, §2, cl. 1 of the United States Constitution gives the President the power to pardon. The "power flows from the Constitution alone, not from any legislative enactments, and ...cannot be modified, abridged, or diminished by Congress." Schick v. Reed, 419 U.S. 256, 266 (1974). Accord, Ex Parte Garland, 71 U.S. 333 (1866). Nor is the exercise of the clemency power subject to judicial oversight. Yelvington v. Presidential Pardon & Parole Attorneys, 211 F. 2d 642 (D.C. Cir. 1954). See also Connecticut Board of Pardons v. Dumschar, 452 U.S. 458, 464 (1981) ("Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review."); accord. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) (plurality).

   The limitations on the clemency power, "if any, must be found in the Constitution itself." Schick v. Reed, 419 U.S. at 267. The pardon clause of the Constitution does not guarantee clemency applicants any specific rights. See U.S. Const., Art. 11, §2, cl. 1. See also Connecticut Board of Pardons v. Dumschat, 452 U.S. 465 (plurality) (no due process rights in clemency because a "felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope.") To the extent the President has elected to set forth clemency procedures, see 28 C.F.R. § 1.1 - 1.11, those rules do not guarantee a defendant a right to discovery, and are in any event purely advisory and create no enforceable rights, 28 C.F.R. §1.11.

9. 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.

10. Although the defense motion asserts that a prospective application for clemency and/or commutation of sentence represents the only basis for their motion to this Court, counsel's affidavit suggests otherwise. Referencing the United States Attorney's letter dated October 26, 2000, denying counsel's request for access to classified materials, defense counsel argue that "(a)ll we have is the government's assertion that the sealed materials contain information whose public disclosure 'could expose intelligence sources and methods' and could 'endanger the national security.' Counsel with security clearances should be entitled to test this assertion." Def. Aff. At 4. This Court has no reason to question - indeed present counsel offer none - the classification of the sentencing materials utilized in 1987. Defense counsel who reviewed the classified material prior to sentencing raised no challenge to the document's classification. Present counsel fail to even suggest a basis upon which they are entitled to "test" the classification today. Thirteen years after their client has been sentenced such an exercise lacks any purpose

11. The American Civil Liberties Union, as amicus curiae, filed their brief a week later, on December 6, 2000. The amicus brief fails to identify any additional basis for access to the classified materials, and, unfortunately, fails to maintain the professional tone of the defendant's own pleadings. The ACLU's brief contains a series of unfounded and inappropriate characterizations of the government's interest in, and right to, maintain the secrecy of the sealed classified materials absent a compelling showing of need on the part of substitute defense counsel.

12. The defendant has previously made three presentations seeking executive clemency and/or commutation of sentence. Two of these requests were made to President Clinton. All three applications were denied. In 1998, the defendant was quoted as disavowing any further intention to seek executive clemency and/or commutation of sentence from President Clinton. "'As far as commutation is concerned,' Pollard said in a recent letter to an American Jewish official, 'the President has acted so disrespectfully on this score that, barring securing a written promise from him to grant it, I will never again submit a request to this man.'" Peter Perl, "The Spy Who's Been Left in the Cold," The Washington Post, July 5, 1998 WI. 11590081 at 39.

13. The (P)resident 'will focus on as many clemency cases as he can after the election'...White House spokesman Daniel Cruise said Sunday. He added that it was unlikely the (P)resident would be able to review any clemency requests made late in the year." AP ONLINE, "Clinton to Review Clemency Cases", November 26,2000.

Certificate of Service

I HEREBY CERTIFY that copies of the foregoing Opposition were delivered via facsimile, (212) 697-1559, and by mail, postage prepaid, to counsel for the defense, Eliot Lauer, Esquire, and Jacques Semmelman, Esquire, 1801 K Street, N.W., Suite 1205L, Washington, D.C. 20006, and to counsel for the American Civil Liberties Union, G. Brian Busey, Esquire, Veronica S. Parkansky, Esquire, and Brett A. Walter, Esquire, via facsimile, (202) 887-0763, and by mail, postage prepaid, this 8th day of December, 2000.

(Signed)
Ronald L. Walutes, Jr.
Assistant United States Attorney