Opposition to Gov't Refusal to Unseal the Record

STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK

ELIOT LAUER. being duly sworn, deposes and says:

1. I submit this Reply Affidavit in further support of the Defendant's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order.

   Counsel's "Need to Know" Has Been Demonstrated

2. The government argues that I, as counsel to Jonathan Pollard, have failed to demonstrate a "compelling showing of need" to know what is in the sealed court docket materials in question. (Opposition at p. 9 n. 11) (emphasis added) The government reiterates that I have shown "no compelling reason" for receiving access to these documents. (Opposition 8) (emphasis added)

3. The government misstates the standard. As set forth in Executive Order 12958 (quoted in Opposition at p.2 n.3), as well as in 28 C.F.R. § 17.41(a)(2), I only have to show a "need-to-know," not a compelling need to know. The government's elevation of the standard by its insertion of the word "compelling" is an implicit acknowledgement by the government that our Motion satisfies the "need-to-know" standard.

4. The government's principal argument in opposition to the Motion is that the prospect of a possible application by Jonathan Pollard for clemency or commutation is too attenuated and therefore insufficient to establish my need to know what is in the sealed court docket. (Opposition 9)

5. However, since filing our motion, we have, in fact, submitted a written application for clemency and commutation of sentence to the President. I have also met in Washington with members of the President's staff involved in the clemency process. Our application for clemency is under review.

6. Thus, my need to see the documents at issue is not hypothetical. There is a very real and pressing need for me to see these documents, in order to make an accurate and complete presentation to the President and his staff.

7. Over and over again, persons opposed to clemency for Jonathan Pollard have invoked the sealed court docket materials as the basis for their opposition. They have argued that the information in the sealed materials is so damaging that clemency must be denied. Now that another clemency application is pending before the President, the only fair way for me as Pollard's counsel to challenge those arguments is to allow me to see the documents so that I can properly address these arguments with the President's staff, while maintaining the strictest confidentiality of the information itself.

8. Annexed hereto as Exhibit G is a letter dated November 29, 2000, written by Congressman Anthony Weiner to United States Attorney Wilma Lewis, which confirms the past reliance of opponents of clemency on the sealed docket materials. Congressman Weiner urges Ms. Lewis to allow me to have access to the documents so that I can respond to those arguments.

9. In his letter, Congressman Weiner writes:

   Throughout this case I have been troubled by the continued insistence of certain individuals within our government that the sealed docket materials, which no attorney for Mr. Pollard has seen since he was sentenced in March 1987, contains evidence which warrants a denial of executive clemency or commutation. Mr. Pollard's attorneys should be entitled, with appropriate security clearances, to examine those materials so that they can properly address and rebut such arguments. To continue to deny their request for access to this material prohibits Mr. Pollard's attorneys from adequately addressing these claims. . . .

10. Basic fairness requires that counsel have access to the materials on which the government relies to oppose executive clemency or commutation for Mr. Pollard.
    (Ex. G)

11. In its Opposition, while the government asserts that my need to see the materials in connection with a clemency application does not constitute a "need to know," the government cites no case or other authority that says that an attorney's need for access to classified court docket materials for purposes of making an ccurate clemency presentation does not constitute a "need to know." It plainly does.

    This Motion Does Not Seek Judicial Intrusion Into the Clemency Process

12. The government argues that because "the President could consult, ex parte, with any of his advisers" in deciding a clemency application, and because "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," that somehow proves that counsel cannot obtain access to the sealed court docket. (Opposition 9)

    That argument is illogical. The fact that defense counsel is not entitled to unfettered access to the President's discussions with his advisers does not mean that the defendant is not entitled to examine a court docket. There is no issue here of penetrating the inner sanctum of the White House. Unlike the President's discussions with his advisers, which presumably no one outside of the Oval Office will ever know, the documents at issue are court filings. Providing current counsel with access to these court documents in 2000 is no more intrusive to the President than was providing Mr. Hibey with access to them in 1987. My seeing these documents will not intrude into the President's right to consult with his advisers in complete confidence.

13. In a similar vein, the government argues that the exercise of the clemency power is not "subject to judicial oversight." (Opposition at p. 6 n.8) This Motion does not ask for judicial oversight of the clemency process. This Motion asks the Court to add current counsel to the list of persons who may see certain materials from the Court's docket that were placed under seal by the Court in 1987 and that are subject to a Protective Order issued by the Court in 1986.

14. This is inherently a judicial function, as the Protective Order itself recognized when it provided that "All other individuals . . . can obtain access to classified information and documents only after having been granted the appropriate security clearances by the Department of Justice through the Court Security Officer and the permission of this Court." (Ex. B at 10) (emphasis added) This has nothing whatsoever to do with overseeing the clemency process.

15. The government also argues that Pollard has made three prior clemency applications without success. (Opposition p. 9 n.12) It is not clear what point the government is trying to make. If the government is suggesting that a fourth clemency application will be futile, and that there is therefore no purpose in allowing me access to the documents, it is highly presumptuous of the government to try to predict what the President will do. Moreover, the fact that three prior applications for clemency were denied only underscores my need to see the documents so that I can finally make an accurate presentation to the President, something that until this date has never been possible.

    The Alleged Continuing Sensitivity of the Docket Materials

16. The government also conflates two distinct issues: (a) my "need to know" what is in the sealed court docket, and (b) the level of sensitivity of these documents and whether I should be trusted to look at such documents.

17. That these are separate issues is demonstrated by 28 C.F.R. § 17.41, entitled "Access to classified information," which sets forth three requirements for access: (1) The person seeking access must have "been determined to be eligible for access in accordance with sections 3.1-3.3 of Executive Order 12968"; (2) the person must have "a demonstrated need-to-know"; and (3) the person must have "signed an approved nondisclosure agreement." 28 C.F.R. § 17.41(a). The first of these requirement is further described in § 17.41(b), and refers to obtaining security clearance.

18. I have been accorded security clearance, satisfying the first requirement of § 17.41(a). I have also signed an appropriate nondisclosure agreement, satisfying the third requirement of § 17.41(a). At issue therefore, is just the "need to know" requirement.

19. While my "need to know" what is in the docket materials does not vary with the degree of sensitivity that those materials retain in 2000, the government tries to sound an alarm by contending that these materials, classified in 1987 or earlier, are still of such sensitivity today that they implicate the "security of the Nation" and, if disclosed improperly, pose an "'exceptionally grave danger' to national security." (Opposition 5, 6) To make sure the point has been understood, the government emphasizes "the classified nature of the material and the need to restrict access to it to avoid potential damage to the national security." (Opposition at p. 4 n.6)

20. The government, however, fails to submit an affidavit from any government official with personal knowledge of the documents, stating that even now, thirteen years later, these documents remain so sensitive that their disclosure, even to security-cleared defense counsel, would threaten national security. The absence of such an affidavit is telling. Surely if these documents remained so sensitive, it would have been easy enough for the United States Attorney to obtain an affidavit to that effect.

21. Moreover, the absence of such an affidavit is especially significant in light of the September 20, 2000 letter written by former United States Attorney Joseph diGenova. A copy of that letter was submitted as Exhibit C to the Motion. Mr. diGenova, no ally of Pollard's, headed Pollard's prosecution and certainly knows what is in the documents. On September 20, 2000, he wrote:

    . . . a review of the classified damage assessment might help you and the public appreciate the gravity of Mr. Pollard's offenses and the rationale for his sentence. I hope you will seek its declassification or, in the alternative, seek the appropriate security clearances and read the classified damage assessment.

    (Ex. C at p. 2) (emphasis added). If the government disagrees with that, the Court could have expected an affidavit from a current government official who has knowledge of the facts, challenging Mr. diGenova's recommendation on the ground of national security. No such affidavit has been provided.

22. In addition, 28 C.F.R. § 17.24 establishes ten years as the period of time during which documents should ordinarily remain classified. That section provides:

    Duration of classification.

    1. At the time of original classification, original classification authorities shall attempt to establish a specific date or event for declassification not more than 10 years from the date of the original decision based on the duration of the national security sensitivity of the information. If the original classification authority cannot determine an earlier specific date or event for declassification, the information shall be marked for declassification 10 years from the date of the original decision.

    2. At the time of original classification, an original classification authority may exempt specific information from declassification within 10 years in accordance with section 1.6(d) of Executive Order 12958.

    3. An original classification authority may extend the duration of classification or reclassify specific information for successive periods not to exceed 10 years at a time if such action is consistent with the standards and procedures established under, and subject to the limitations of, Executive Order 12958.

    28 C.F.R. § 17.24.

23. Nothing in the government's Opposition demonstrates that the sealed docket materials in this case were exempted, under § 17.24(b), from the ten-year rule of § 17.24(a), or that the government extended the initial ten-year classification period pursuant to § 17.24(c).

24. Moreover, even if the materials remain as sensitive today as in 1987, my security clearance represents an acknowledgement by the government that it has confidence that I will not divulge classified information. The government's contrived argument that "any addition to the limited number of individuals allowed to view 'Top Secret' materials increases the risk of disclosure to unauthorized persons"-another way of saying that maybe I cannot be trusted and will divulge the classified information after all (Opposition 6)-makes a mockery of the security clearance I have been granted. My grant of "top secret" security clearance is a complete answer to this argument.

25. The government also raises the specter of "wide dissemination of masses of sensitive national security documents," supposedly to be reviewed by "a number of lawyers, paralegals, secretaries, and clerks . . ." (Opposition 6) (quoting from a case). This is not what will happen. There will be no "wide dissemination." Indeed, there will be no dissemination. There will not be an army of lawyers, paralegals, secretaries and clerks. It will just be me.¹ I am not asking to remove copies of the documents from the government's secure facility. I am just asking for the opportunity to read the documents.

26. In short, the government's arguments about the danger to national security if I see the documents are contrived and are belied by my "top secret" security clearance.

27. I would also like to make clear that we are simply responding to arguments raised by the government to justify its denial of access to the documents. It is not our intention in this Motion to seek to declassify the documents. The government quotes our motion papers out of context when it tells the Court we said that "Counsel with security clearance should be entitled to test th[e] assertion" that "disclosure 'could expose intelligence sources and methods' and could endanger the national security.'" (Opposition at p. 9 n.10) This meant that I should be entitled to examine the documents so that I may see for myself whether they truly reflect that Pollard exposed intelligence sources and methods and endangered national security-none of which we believe to be true, but which adversaries of Pollard have long claimed to be the case. That is what I meant by saying that I should be "entitled to test that assertion."

    The Government's Claim That Counsel Waited Too Long Is Untrue and Irrelevant

28. The government argues that we should not have "waited until just weeks before the President's term concludes to file the instant motion." (Opposition at 12) Again, it is not clear what point the government is trying to make. The insinuation is that it would be unfair to require the government to comply promptly with an order authorizing my access to the documents. However, the United States Attorney has already admitted that the volume of documents is extremely small. (See Ex. E, letter from United States Attorney Lewis dated October 22, 2000) ("Only a very few of the filings in this case were made under seal.") Moreover, all of the documents at issue are known with precision. Indeed, they are Court filings.

29. As set forth in the Motion, as far as we can discern from the public Court record, the following five documents are at issue:
    • Declaration of Secretary of Defense Caspar W. Weinberger, filed with the Court Security Officer on January 9, 1987
    • Defendant Jonathan J. Pollard's First Memorandum in Aid of Sentencing (undated)
    • Defendant Jonathan J. Pollard's Second Memorandum in Aid of Sentencing, served February 27, 1987
    • Government's Reply to Defendant's Sentencing Memorandum, served March 3, 1987
    • Minutes of sentencing dated March 4, 1987, at p. 57.

30. There is therefore no issue of trying to identify and gather large numbers of documents scattered in many places. There is no burden to the government, and the timing of our Motion is therefore irrelevant.

31. In criticizing the timing of this Motion, the government also fails to remind the Court that we asked the United States Attorney, in writing, for access to these documents some 2 months ago-on September 22, 2000. (Ex. D) It took the government over a month to respond. (Ex. E) The government's response focused heavily on the alleged national security concerns if the documents were made public. (Id.) At the time, I had applied for, but had not yet received, security clearance.

32. Thereafter, when I obtained "top secret" security clearance, I promptly wrote back to the United States Attorney, informing her of my newly-obtained clearance, and pointing out that any concerns about national security have been resolved by my grant of top secret security clearance. (Ex. F) I again waited for the government to respond. After waiting a reasonable time and receiving no response at all, I filed this Motion. The government's criticism of undue delay is unwarranted as well as irrelevant.

    The 1990 Denial of Hamilton Fox's Motion for Access
    to the Classified Documents Was Based Upon Different Grounds

33. The government argues that in 1990, Hamilton Fox asked the Court to see the classified materials, and the Court denied that motion. (Opposition 4)

34. Annexed hereto as Exhibit H is a copy of Mr. Fox's motion. Annexed hereto as Exhibit I is the government's opposition to that motion.

35. As set forth in the motion, Mr. Fox was asking to scrutinize the classified materials to see if they might contain something that could be of use to Pollard's § 2255 motion. (Ex. H)

36. The Court refused to allow such a fishing expedition, particularly in the context of a § 2255 motion. See United States v. Pollard, 747 F. Supp. 797, 806-07 (D.D.C. 1990).²

37. That situation was completely different from the present one. Unlike Fox, who was seeking to forage for whatever he might find, we have set forth a bona fide need to see these materials in connection with an actual, ongoing clemency application.³

38. The government also argues that if these materials cannot be accessed for purposes of a § 2255 motion, a fortiori they cannot be accessed for use in connection with a clemency application. (Opposition 9)

39. That argument fails. A § 2255 motion is a judicial proceeding. A United States district judge presiding over a § 2255 motion would have access to any classified docket materials, and can take whatever steps are necessary and appropriate to ensure that the government does not get an unfair advantage based upon those materials. Thereafter, the Court of Appeals provides an additional level of protection.⁴

40. By contrast, the clemency process contains no such safeguards. We have no way of controlling what information, true or false, is being provided to the President. As Congressman Weiner points out (Ex. G), there has been a demonstrated pattern, in connection with Pollard, of certain people opposing clemency based upon the alleged contents of the classified docket materials. Under these circumstances, it is only fair that I be allowed to see these materials so that I can make a fair and accurate presentation to the President in support of clemency.

    The "Top Secret" Security Clearance Accorded Me by the
    Government Is Sufficient to Allow Me Access to the Documents

41. My application for security clearance made it very clear that my objective in requesting security clearance was so that I would have the proper clearance for seeking access to the classified documents and information from this case. The government processed my application and, after a full investigation, granted me "top secret" clearance.

42. After I was notified that my application for security clearance had been approved, I met in Washington on November 2, 2000 with Christine E.Gunning of the Department of Justice for the purpose of signing the forms that would complete the process of receiving security clearance. (See Ex. A)

43. At that meeting, in response to my specific question, Ms. Gunning told me that I now had the security clearance needed to see the sealed docket materials in the Pollard case.

44. In its Opposition, the government drops a footnote suggesting that my "top secret" security clearance may be inadequate to review the sealed docket materials supposedly because a key document-a 46-page declaration of then Secretary of Defense Caspar Weinberger-contains Sensitive Compartmentalized Information (SCI). (Opposition at p. 7 n.9) No affidavit supports this contention.

45. If it were true, surely the government would have made this a major, dispositive point at the very outset of its Opposition-not a passing reference in a footnote in the latter portion of the Opposition. Moreover, if it were true, the government would have been wasting its resources processing my application for security clearance.

46. That the government's suggestion is not true can be shown in several ways. First, in 1990, when the government opposed Fox's motion for access to the documents, the government referred to this same document as "a Declaration, classified Top Secret, from then Secretary of Defense Weinberger . . ." (Ex. I at p. 2) (emphasis added). In opposing Fox's motion, the government did not use the more restrictive "SCI" classification when it described this document.

47. In addition, even within its Opposition to the present Motion, the government contradicts itself. On page 1 of its Opposition, the government admits that the very same document is "Top Secret"-not SCI. (Opposition 2). On page 3 of its Opposition, the government again refers only to the need to shelter "Top Secret" materials. (Opposition 6) It is not until page 7, in a footnote, that the government mentions that the Weinberger document also contains SCI information.

48. If the government has been wasting its resources granting me the wrong security clearance for the purpose requested, I respectfully request an evidentiary hearing, at which the Court Security Officer shall be called to testify, so that the Court can address and resolve this issue.

    Conclusion

49. I respectfully submit that I have established a "need to know" what is in the sealed docket materials. The interests of justice mandate that I be given access to these documents. The government's feigned concern about risks to national security are disingenuous and are rebutted by my "top secret" security clearance, issued for the announced purpose of allowing me to have access to the classified documents from this case.

50. In the event the Court retains any lingering concerns about allowing me to have access to the sealed docket materials, I would welcome the opportunity to appear before the Court and reaffirm directly in open court my commitment to abide by the terms of the Protective Order and the laws governing classified information.

____________________________
Eliot Lauer
D.C. Bar No. 203786

Sworn to before me this 11th day of December, 2000

____________________
Notary Public

CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
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Attorneys for Jonathan Jay Pollard