LEGAL DOC: Transcript Of Court Hearing in Secret Documents Case

Justice4JP Release - Web Published June 20, 2001



Docket No. CR 86-0207

Washington, D. C.
January 11, 2001
2:00 p.m.



For the Government

U. S. Attorney's Office
555 4th Street, N.W.
Washington, D. C. 20001

For the Defendant;

Curtis. Mallet-Prevost, Colt & Mosle, LLP
101 Park Avenue
New York, NY

Official Court Reporter:

4806-A U. S. Courthouse
Washington, D. C. 20001
(202) 273-0404

Computer-Aided Transcription of Stenographic Notes


THE DEPUTY CLERK: Criminal Case Number 86-207, United States of America versus Jonathan Pollard. For the United States, Ron Walutes; for the Defendant, Eliot Lauer and Jacques Semmelman. The Defendant is not present in the courtroom.

THE COURT: All right. This matter was scheduled for hearing today, and, Mr. Walutes, is the United States ready to proceed?

MR. WALUTES: It is, Your Honor.

THE COURT: Thank you. Mr. Lauer, is the defense ready to proceed?

MR. LAUER; Yes, we are, Your Honor.

THE COURT: Very well.

Now, presently before the Court is Defendant's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. Is a public hearing appropriate?

MR. LAUER: Yes, Your Honor.

MR. Walutes: The Government would agree, Your Honor.

THE COURT: Fine. Then I'm ready to hear from the movant.

MR. LAUER; Thank you, Your Honor.

May it please the Court, Your Honor, I am Eliot Lauer. Together with my partner, Jacques Semmelman, of the firm Curtis, Mallet-Prevost, Colt & Mosle, LLP, we represent the Defendant, Jonathan J. Pollard. Our client is serving a life sentence imposed on March 4, 1987. He is in his 16th year of imprisonment.

This is a motion, pursuant to paragraph 14 of the October 24, 1986 protective order entered in this case, to add me to the list of defense counsel able to access the classified material in the sealed record of this case as defined in the protective order. The classified material to which we seek access was filed with the court in 1986 and early 1987, prior to and in connection with the sentencing of Mr. Pollard.

As set forth in our papers, as of November 2, 2000, I was given top security clearance by the United States Government. I have signed all applicable agreements. acknowledgments and understandings, and I am prepared to affirm directly to Your Honor, this honorable Court, that I will abide by all of the requirements of a person afforded the opportunity to access this sensitive material. I have signed, in addition, the approved nondisclosure agreement as required by the protective order. As such, Your Honor, I respectfully submit that I am a person determined to be eligible for access to the classified information in the sealed file.

Since 1987, it's almost 14 years ago, to be precise, since March 3, 1987, no one representing Mr. Pollard --or since March 4, 1987, no one representing Mr. Pollard has seen the few classified documents that are the subject of this motion. Essentially, we seek access to some 35 to 40 pages contained in five separate documents that are identified, known, and part of the sealed record in this case and which are easily accessed.

The protective order clearly contemplates by its terms the addition of new counsel who would have access to this information, provided counsel obtains clearance. And I would refer specifically to paragraph 10 and paragraph 14 of the protective order, which explicitly provide for the addition of new people, provided they have appropriate clearance. We submit. Your Honor, that under the terms of the protective order and under the terms of 28 CFR, Part 17, I am a person who is determined to be eligible for access in accordance with the applicable executive orders. I have signed the approved nondisclosure agreement and, as we have set forth in our papers and about which I will elaborate a bit this afternoon, we clearly have demonstrated a need to know, or more precisely, to access these 35 to 40 pieces of paper.

We need the documents effectively to represent Mr. Pollard in bis request to President Clinton, whose term is soon expiring, for clemency and commutation of his life sentence, We are actively pursuing with the President this request for clemency. We have met with senior members of the White House staff. We have written to the President. We have been in communication with members of the President's staff, we have provided extensive information to the President's staff, and we are actively pursuing this matter.

It is a matter of public record that there are certain individuals, including, notably, the former chief prosecutor of Mr. Pollard, Joseph diGenova, who oppose clemency or commutation by the President. It is also a matter of public --

THE COURT: Had that been made known recently?

MR. LAUER: It has been manifested most recently in, among other things, an article that appeared in the New York Times on December 13 that is attached to the supplemental affidavit that I submitted on December 13 in further support of this emergency motion.

Mr. diGenova is quoted as saying that, quote; "it is absolutely indefensible from either a legal or humanitarian standpoint to grant clemency to this American citizen who had done the gravest kind of damage to the United States." Close quote. And I will address this in a moment.

THE COURT: All right. Certainly.

MR. LAUER: It is a matter of public record that these opponents, including, most notably, Mr. diGenova, appear to rely or give the impression in the public record, which clearly has an influence on this entire process involving the President -- which gives the appearance that they are speaking with some degree of authority as to charges that supposedly were made by the United States Government in the sealed portion of the Pollard case. These allegations or these allegation or these insinuations which appear and which are attributed to Mr. diGenova and other opponents of clemency charge that Mr. Pollard did grave harm to national security and that Mr. Pollard directly harmed American agents and others associated with the American intelligence-gathering process. These particular charges are not set forth -- with the degree of specificity or the degree of severity that are reflected in the public statements attributed to Mr. diGenova and others, are not reflected in the public record, the voluminous public record in the Pollard sentencing. Presumably, the public is led to believe that these charges are indeed contained in the 35 to 40 pages that are sealed and are part of the classified file.

In addition to the quotation from the New York Times article, to give a sense of how genuinely significant this debate is as to what is or is not in the sealed material, we would refer to a letter written by Congressman Weiner most recently to the United States Attorney, the Honorable Wilma Lewis. And this is also attached to our reply affidavit --my reply affidavit in further support of the emergency motion. And just quoting a portion of it. Congressman Weiner wrote on November 29 to Ms. Lewis, "Throughout this case," referring to the Pollard 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, contain evidence which warrant a denial of executive clemency or commutation."

Finally, we also appended in our original moving papers a letter that Mr. diGenova wrote to Mr. Semmelman and me on September 20, 2000, which further explains the need to provide access to Mr. Pollard's security-cleared counsel to actually see the 35 to 40 pages so that I can authoritatively rebut statements by Mr. diGenova. For example, in his letter of September 20 -- perhaps I can give a short background to provide the context.

THE COURT: That's fine. I've got the time.

MR. LAUER; Thank you. Your Honor.

In connection with the first debate between now Senator Hillary Clinton and then candidate Hillary Clinton and Congressman Rick Lazio, the moderator, Tim Russert, of NBC "Meet the Press," asked a question to Mrs. Clinton about Mr. Pollard. And, essentially, he referred to Mr. Pollard as someone who had committed treason, we saw that, we wrote Mr. Russert and we said that that is incorrect; Mr. Pollard was never accused of treason. He pleaded guilty to one count of espionage. He was never specifically charged with having intended to commit harm to the United States. And Mr. Russert on the next segment of "Meet the Press," the following Sunday, went on national television and admitted that he had made an error. He had received clarification from Mr. Pollard's counsel and that, indeed, Mr. Pollard was not accused of treason.

He then went on to say, however, sort of an effort to be balanced, that he had spoken to the former chief prosecutor, Mr. diGenova, and Mr. diGenova had said that indeed Mr. Pollard had, quote, given up the names of agents, which indeed is a very serious allegation.

We immediately wrote Mr. diGenova and we said Mr. Semmelman and I have reviewed the voluminous public record in this case. We find no such reference in all of the statements submitted by the United States Government, that Mr. Pollard gave up the names of agents. And in the September 20 letter. Mr. diGenova conceded that the statement attributed to him by Mr. Russert as a fact was not a fact at all. And as Mr. diGenova conceded, quote, "The statement attributed to me by Tim Russert that, quote, agents in the field were identified, quote, is accurate. That was and is my professional opinion."

Your Honor, what we're dealing with is a very grossly unfair situation in which the former chief prosecutor and others who oppose clemency or commutation of the sentence are able to give the impression that there is something more heinous in the classified file than perhaps there is. Now, we haven't seen the 35 to 40 pages, but we suspect. Your Honor, based on the voluminous submissions by the Government prior to the sentencing, that, indeed, a gross injustice is being done when Mr. Pollard's current counsel, security-cleared counsel, are unable to see the 35 to 40 pages and are now unable to rebut these insinuations.

Now, the Government raises --we believe, based on this, we have a clear need to know. There is virtually no-there is no burden whatsoever. We're talking about walking over to the Justice Department, which is down the block, going up to the floor where these sealed documents are maintained in a vault, and looking at it. No notes, no dissemination, no copies. And that's what we're talking about.

Now, the Government raises various objections. I'm not going to address all of them. I think some of them have fallen by the wayside. But first and foremost, they give the impression that there is a security issue, there is a national security issue, and therefore, I should not have access to this information.

Well, national security is not an issue. First of all, we have the clearance. We obtained the clearance -- I obtained the clearance expressly and specifically for the purpose of seeing the classified file. The court officer knew that, the FBI knew that, the entire united States Government, which fully investigated me -- and I'm proud to say I have led a middle-class life with middle-class values and I was approved. The entire process was devoted for one purpose; Do I get clearance so that I can see these materials? I have the top security clearance, so there is no national security issue Nor should there be a --

THE COURT: Well, I don't know if that follows, but it's all right if that's the way you think.

MR. LAUER: At least I would say that the United States Government has determined that I am of the quality of person that should have access to this type of material; that there is no risk -- if I may, Your Honor. Quoting from 1741 of the CFR, they have determined that I am an eligible person who should see -- who is the type of person eligible to see this type of material.

But let me go on, Your Honor.

THE COURT; Now, that sounds better: The type of person who is eligible to see it. Not should or could. I don't know if "should" or "could" are the right verbs.

MR. LAUER; I accept that. Your Honor.


MR. LAUER: Clearly, I am a person eligible to see it


MR. LAUER: Let's address the reality of this situation.

THE COURT: Oh, certainly.

MR. LAUER: The Government acknowledged in 1986 and 1987, when it identified this information as classified, that it was appropriate to provide it to defense counsel representing Mr. Pollard. So 13 or 14 years ago, when the information was considerably fresher and much more sensitive than it might be today -- and I'm not suggesting that it is or is not sensitive today. But 14 years ago, the Government made a decision that whatever the national security issues were, it was sufficiently comfortable providing this information to Mr. Pollard and Mrs. Pollard's defense counsel. So the information, by definition, has already been made available to defense counsel, 14 years ago.

Second, I think it's a fortiori that information that was made available 13 years ago, the subject matter of which might have been 13, 14, 15 or more years old today, is certainly -- should be made available to top security cleared counsel. There is a ten-year presumption, typically, that classified material after ten years would lose its sensitivity. It may be that in this case some or all of the information is not subject to that presumption. But in any event, the fact that l3, 14, 15 years have passed certainly is a significant factor in assessing any issue as to whether top security cleared counsel should access this very small amount of information which has already been provided to defense counsel.

The Government points to a number of Rule 16 motions in criminal cases. Those cases have no applicability here, and they bear no comparison to the facts of this case. There's one fundamental difference. In those cases the defendants were engaged, by and large, in a fishing expedition to see information and material to which they did not have access. And it ranges from a case like Poindexter, who literally wanted to see millions -- "millions" is the word used in the court decision -- millions of documents in the CIA files, to someone like Yunis, a convicted hijacker-terrorist who wanted to see sensitive information. This is a fishing expedition. In contrast, in our case, we're talking about -- and I'm going to get to the documents themselves -- we're talking about information that already has been provided to defense counsel and the defendants.

And indeed, what is ironic is that the five documents of which we are aware -- and there may be some others, but based on our review of the public files and the docket in the case, we believe what this motion covers are the classified portions of five discrete identified documents. And with Your Honor's permission. I would like to hand up the public record of these five documents so that Your Honor can get a true sense of the specificity of the request and the nature of the request. May I?

THE COURT: Certainly.

MR. LAUER: These are five documents, Your Honor. The first document, and I think the most factual in terms of the five documents, because I think the other four to some extent play off of this document, is the declaration of then Secretary of Defense Caspar W. Weinberger. The entire document is 46 pages in length, but as Your Honor can see, perhaps 25 to 30 pages have been redacted. This document was filed in 1986, that's 14-and-a-half years ago, and in its complete form was provided to defense counsel. So defense counsel have. 14 years ago, seen this. have discussed it with Mr. Pollard. This is not something as in the criminal cases that was unknown to the applicant.

The next document is Defendant Pollard's first memorandum in aid of sentencing. This is a document that was actually created by Mr. Pollard himself. And most of this is a public document. Perhaps one page in total, or one-and-a-half pages of material was redacted by the court security officer because it contained classified information. If Your Honor flips through it, you might see a few lines that are missing. For example, at page 17 -- page 16 and 17, there's a paragraph here and a paragraph there. So here, again, this is information that was actually uttered by Mr. Pollard himself 14 years ago, and it's not realistic to say, well, go talk to Mr. Pollard and ask him what he wrote in that paragraph. So, obviously, in order to have an appreciation for the record, we need to see that page-and-a-half of classified material.

The third document is Defendant Jonathan J. Pollard's second memorandum in aid of sentencing. And here, perhaps ten pages of material has been redacted. And this document, in a large measure, comments on the central issue at that point in the sentencing, which was the nature of the harm that was said to have been caused to the United States. And in both the public portion and presumably in the ten or so pages that are classified, there was a discussion of that point, and presumably in large measure a discussion of the points raised in Secretary Weinberger's declaration.

The fourth document is the Government's reply to Defendant's sentencing memorandum. And this contains perhaps seven or eight pages. And this is precisely what it purports to be. It's their reply to the Government's comments on the issue of harm and presumably on the Weinberger declaration. So, again, these are documents that were in the case, that defense counsel had, that they were able to talk to their client about,

And the fifth document is the transcript of the March 4 sentence. The entire sentence, including breaks. And there was one relatively long break because of illness of Mrs. Pollard. The entire proceeding lasted about three hours, including the breaks. And at page 57, there was a bench conference which was put under seal. I can't say how many transcript pages that translates into. But the sense that I have is we're probably talking about anywhere from one to ten or so pages. The rest of the proceeding would have taken up the remainder of the time-

So. those are the five documents, and those are the snippets of the five documents which are classified. Unlike the Rule 16 cases, this is not a fishing expedition. We have seen the material, that is, 14 years ago. Unlike situations where there are relevancy arguments and materiality arguments, unquestionably, the Government felt that in evaluating the harm done by Mr. Pollard, this was crucial to that determination. The defense counsel felt that in submitting its presentations, this information was crucial to an evaluation of the harm caused by Mr. Pollard. And, indeed, in essence, what the President is being asked to do, in addition to exercising his power to grant clemency on humanitarian grounds, presumptively he will at some level consider, and is being asked to consider by the opponents to clemency, the degree of harm actually caused the united States by Mr. Pollard's actions.

So, in essence, there has already been universal agreement by all participants that this information is highly relevant to the determination, or at least a portion of the determination that is being made with respect to the clemency application.

Now, another argument that the Government makes is that you shouldn't -- even security-cleared counsel can't obtain access to classified information in order to go on a fishing expedition for use in some type of 2255 motion. And we agree, We have said that our need for this material relates exclusively to the clemency application.

Your Honor is well aware that we have filed a 2255 motion. We believe that there is strong evidence that the Government breached its plea agreement with Mr. Pollard; we believe there is strong evidence that he was denied effective assistance of counsel. And we have made it very clear that this classified information has nothing to do with our 2255, it won't be used or referred to in our 2255, It is essentially irrelevant to the documented fundamental deficiencies in the manner in which trial counsel represented Mr. Pollard, and it is essentially irrelevant to the documented ways in which the Government breached their plea agreement with Mr. Pollard, So. we have said this in our written submission and I undertake directly to the Court that we will not rely on or refer to the classified material in our 2255. We don't intend to, we don't need it, and it's a red herring.

Government also says that this application was not timely. It could not have been more timely. First of all, we requested access on September 22. The Government took a month and then said, no, you shouldn't have access because you don't have security clearance. Well, finally/ on November 2, I got security clearance, and I wrote the Government again on November 6, and the Government did not respond for several weeks, in which case we filed our motion. Whether we should have filed this sooner or later, the fact is there's no prejudice and there's no burden. We're talking about a limited number of pages that are in a file at the Justice Department.

Your Honor, I would like to just end by further reference to the standard. In order to obtain the classified material, we need to show three things. We need to show that I am eligible for access; and I believe we have shown that. We need to show that I have signed an approved nondisclosure agreement; and we have done that. And we need to show a demonstrated need to know this information; and we submit most respectfully. Your Honor, that we have shown that.

The Government resists disclosure, but in this context or in any other context, Your Honor, the fact that the Government does not wish us to know does not negate that we need to know. We submit most respectfully. Your Honor, that Your Honor should grant this emergency motion. We don't have that much more time to complete this process. We believe that this process is being considered very seriously. We have put a tremendous amount of effort into it, and I believe so has the staff of the President. And we would urge Your Honor to grant our motion. We have submitted a form order, but we would ask Your Honor to grant our motion today so that we can immediately access this very small group of documents and effectively represent our client.

Thank you. Your Honor.

THE COURT : Thank you.

Mr. Walutes?

MR. WALUTES: Good afternoon. Your Honor.

THE COURT: We'll be happy to hear from you at this time.

MR. WALUTES: Thank you. Your Honor.

Mr. Pollard pled guilty 15 years ago. The Government had a right at that time to expect finality in these proceedings. In particular, that the classified national defense information would remain permanently protected. And in fact, the Court has. Late Chief Judge Robinson did deny an earlier request by subsequent counsel with clearances to access that information.

The first thing the Government would like to raise to the Court is one of jurisdictional question. Defense counsel in their argument here have explicitly and unequivocally waived any use or need for this material in a 2255 hearing. And if they are to take out the 2255 hearing, which they have apparently done completely, it is unclear to the Government what " because under 2255 there is some limited right to discovery for good cause. But they're taking that out of this case. There is no other judicial proceeding.

The hook they try to use as jurisdiction is the protective order itself. First, the protective order is under the authority of CIPA, the Classified Information Procedures Act, 1.8 U.S.C., Appendix 3, and that act doesn't speak beyond the context of the trial and the litigation of the trial and the appeal of that. Those are all being taken out of this case by defense counsel. The protective order itself as signed by former Chief Judge Robinson, he interpreted it not to allow subsequent defense counsel access to these classified materials.

And so the Government's point is, what is there in terms of a judicial need for this material? Defense counsel are saying unequivocally that they need this material for a pardon. Your Honor, a pardon process is exclusively governed by Article II of the United States Constitution. It has no judicial oversight. The President himself could afford defense counsel an opportunity to see whatever he thinks is necessary. The Court itself has no way to weigh what material is being used in that pardon evaluation. And the Government --I would like to speak to that at some length because I don't think that a letter from a former Government employee under the Reagan Administration or a member of the legislature in any way edifies this Court as to what proceedings are occurring in the Executive Branch. And I think that's the crux here, because if they can't establish relevance or materiality, then they fail on their own argument.

But I do want to begin with --I don't want to waive the jurisdictional argument, I think it's important, because I don't think they make it once they take the 2255 out of this case.

Your Honor, if I could then speak to -- counsel just said that he was told by the United States Attorney, Wilma Lewis, that he could not have access because he lacked security clearances. The actual letter, dated October 26, is attached to one of their motions and reads, "You have not demonstrated any need for these materials." Critical difference. It's not that he didn't have the clearance or wasn't likely to get clearance or be eligible for clearance, but rather, that be could not demonstrate a need for these materials. And so he misrepresents to the Court the actual language and the barrier.

Second, he did not get security clearance because of needing to see these documents. The security clearance officer, Christine Gunning, who actually witnessed his signing of the appropriate papers to acquire the Top Secret, which I believe his co-counsel has also now acquired, said that she explicitly had a dialogue and understood that he was acquiring those Top Secret clearances to allow unfettered and unrestricted ability to have conversations with his client about material that might be Top Secret. Although she said at the end of the process he mentioned to her that he was likely to seek this, the unsealing of classified materials, she herself had not reviewed those materials in over a decade and had no familiarity or instruction to make sure that his clearances matched them.

The key is, he could have done what the party did in front of Judge Brinkman, the Eastern District of Virginia, in the Kirn case, the Naval Intelligence officer there. In that case, they came to the court in the first instance, asked for the court to direct that they get the clearances and access to the documents. Counsel didn't do that. In fact, their first pleadings by them in the amicus brief argue that clearance alone is enough to open the door, and it isn't. They have to show a demonstrated need for the material.

What they did is they went and got the clearance and thought that way, strategically, that would strengthen their argument when they came to the court today. The error they made was the material is classified higher than Top Secret. It is Special Compartmentalized Information. It is code word protected. And they don't have the code word clearance.

Now, I'm not saying it's not a barrier. The Court could order that access be given to them just like the Court if the Court were concerned and found jurisdiction here and found that this would be appropriate. But the point I'm making is they don't today have the right clearances. The material in question, Secretary Weinberger's declaration, is code word protected, it is only kept in alarmed facilities, and it is extremely sensitive. The Government is here today simply trying to protect very classified information from needless disclosure.

Judge Friedman's order in the McDonnell Douglas case which we cited to the Court in our pleading makes the point that any unnecessary dissemination of classified information creates a greater risk that it will be compromised. And that's why we're here. And Judge Friedman in that case was specifically speaking even where he had trustworthy 01-security-cleared defense counsel and he had a protective order. And he found that simply wasn't adequate by itself to protect the information. You have to limit the number of people who see it, and that limitation enhances the security attached to that information.

The Government would note we started to quibble about the adjectives in front of the need to know. But there are a number of adjectives used in the citations that we use. Judge Brinkman in the Kim decision said defense counsel had failed to show an adequate need to know. In the Yunis decision, the D. C. Circuit said that mere theoretical relevance was insufficient and conceivable benefit is also insufficient. Executive Order 12968 says that there must be a demonstrated need to know. And the CPR citation just cited by counsel, 28 CPR, if you look to 1745, it says there must be an actual need to know. And so defense counsel actually has to show the need to know.

The argument they make to this Court is, quote, universal agreement that it's highly relevant. . Well, Your Honor, I don't agree, and so there isn't universal agreement that it is highly relevant.

Again, citing a former Government official from a number of administrations in the past, they can't demonstrate, or at least haven't demonstrated that Mr. diGenova has had any current opinion or been asked to opine on this matter from the President or the Member of Congress. It's not clear what, if any, source he makes for the declaration that it's being used or that it's being used in this current application. The date of the letter actually I think precedes the application for a pardon that they made after the Government's opposition noting how speculative it was.

And then the final pleading they actually made I think makes a very good-point. They cite to the Court a New York Times article from December 13th of 2000 which notes the series of declined pardons a number of presidents have made in Mr. Pollard's case and goes on to say that President Clinton, quote, "ordered a separate reassessment of the case which concluded that Mr. Pollard had seriously damaged national security." Your Honor, that line is incredibly significant, because it doesn't make any sense why President Clinton would be using a damage assessment that was written over a decade ago by a Secretary of Defense for the Reagan Administration when the President apparently has ordered his current Secretary of Defense or Intelligence Department to give him an opinion as to what the damage has been now, after the fact. Why would the President be using something that was written over a decade ago? Your Honor, it just doesn't make any reason why he would be using something that was being written in 1987 to help Judge Robinson assess this case because he had to have a sentencing and he needed some information, but why would the President today --he doesn't have the same restriction. He can actual; look, what has this compromise cost this country? And apparently, according to the New York Times, their own evidence, he has done this. He's asked for a separate assessment.

The importance is, is if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality. And so it is not universally accepted that this material is relevant to the current proceedings.

If I can catch my train of thought here.

THE COURT; Take your time.

MR. WALUTES: Thank you. Your Honor.

Your Honor, if I could, I think the concern the Government has is this information is highly classified, it's code word protected. Counsel don't have any demonstrated need for this information. It is not clear at all that the White House is making any use whatsoever of this information. They haven't demonstrated such a use to this Court. And so they can't make the need to know.

They can't show materiality or relevance that the case law in this circuit is very clear they must show, and they have failed to. They don't have the right clearances. I don't mean to make that -- in fact, we put it at the end of the motion. We're not trying to start with that argument. I think today I started with the jurisdictional argument because I keep hearing them absolve any use of the 2255 motion. If you take the 2255 out, then why is this Court discussing basically a discovery ' type motion? If we're looking simply to get access to historical records to get a complete view, then this should be more appropriately filed under a FOIA request. That won't get them what they want because, as I understand it, FOIA requests would come right -- the first exemption is for properly classified information.

And so, Your Honor, my bottom line is, is that this information was appropriate, it was appropriately disclosed to defense counsel at the time it was important.

And finally, in terms of the sentence itself, Your Honor, I don't think the Government needs to use that classified information to justify Mr. Pollard's sentence in this case. We only have to look to the Sentencing Guidelines. How, they didn't apply at the time because Mr. Pollard's criminal conduct, espionage, occurred before they were adopted in 1987. But the base offense level for the offense he pled to, which is national defense information in aid of a foreign government, 794(c), the base offense level is 42. If you add four points for his role, and that would be under --I should probably give you citations for each of these. Under the Sentencing Guidelines, 2M3.1, Gathering or Transmitting National Defense Information to Aid a Foreign Government, base offense level 42 if Top Secret information is involved.

Then you add four points for his role in the offense, and that would be under 3B1.3 Then you add an additional two points for the abuse of a position of trust, which is the security clearances, under 3B1.3, and finally, the obstruction of evidence, under 3C1, you get a 50 sentencing guideline. Then if you take off the acceptance of responsibility, you can give him two or three points, you're at 47.

Your Honor, after 43, it is a mandatory life under the Sentencing Guidelines. So any other American pleading to this offense would be sentenced to life in prison. The Government can make an argument based simply on the offense and the way anybody else would be treated under the Sentencing Guidelines Act. We need not go any further into the type of information that was compromised or what that meant to the country. The President may or may not be doing that. But the Sentencing Guidelines alone, in terms of uniformity of way people are treated, would give Mr. Pollard the life sentence.

Thank you, Your Honor.

THE COURT: Thank you.

MR. LAUER: Your Honor, may I briefly reply?

THE COURT: Thank you very much.

Oh, of course I'll give you an opportunity to reply.

MR. LAUER: Most respectfully, that argument was not becoming the United States of America or an assistant United States Attorney. It is a flat falsehood -"

THE COURT: Well, let me just say, that is certainly your opinion and --

MR. LAUER: Your Honor, it is a flat falsehood that the Weinberger --

THE COURT: What is false?

MR. LAUER; That the Weinberger declaration was classified at a level above Top Secret. There is nothing in the file, nothing whatsoever, that indicates or suggests, nor is there anything in the Government's papers that makes the statement the way we just heard in open court, that specifically says that this declaration was classified above the level that I received. Mr. Weinberger refers to the fact that he has information that is SCI, Sensitive Compartmented Information. But the document itself that he created was classified Top Secret. This is the clearance that I obtained.

That is an outrageous argument, and it is simply a flat falsehood. Indeed, in the 1990 application by Mr. Fox, he specifically referred to the fact that it was a Top Secret document. The glossary attached to the declaration in the public record talks about Top Secret, Secret and Confidential. There is absolutely nothing, nothing anywhere, other than this outrageous statement that we just heard, that suggests that we can't get access to this document because we don't have the right clearance. That is truly outrageous. And if it were the case. I would have expected an affidavit to be submitted which would demonstrate that in fact we don't have the clearance.

And I would suggest. Your Honor, that if the issue is whether we don't have the appropriate clearance, which is not the case, then we would seek the clearance. We specifically said to the Government we want to get access to the sealed information, and that's exactly what we got. And I believe the court security officer who is responsible for designating and filing and maintaining these documents knows exactly what level of security was necessary, so that's the first point. Your Honor.

And I appreciate the fact that it is not appropriate, usually, to make this type of direct criticism of a member of the bar or an officer of this court or a United States Attorney or an Assistant United States Attorney. But that is simply an outrageous statement to make. In fact, they dance around it in their papers. In their papers, they talk about SCI, this and that, but if you read the papers, they never say. because it's not the case -- they never say that the declaration is classified above Top Secret. And I submit, Your Honor, that based on everything we've seen, it is not. And if they believed that it was, they had an obligation to come in with a sworn affidavit from someone with actual knowledge. Not come into this court and then nine days later, when it's too late to deal with this for the purpose that we're seeking it, to say, well, gee, I was misinformed or I thought and I'm sorry, I'm apologizing to the Court,

The fact is that if you look at their papers, they don't make the statement. If they had made that direct statement, I would have challenged it. And based on the file and based on the declaration itself, it is clear that it is only Top Secret. And in any event, we would ask Your Honor to grant the motion to the extent that we have the appropriate clearance. And I believe, Your Honor, that that will cover these five documents.

I have a few other points. Your Honor. Second, we have spoken to the White House prior to making this motion. The letter was written sometime after we had begun the process of seeking clemency. As Your Honor can well imagine, this type of application is not ordinarily the type of thing that you want to overly document or pursue in the public domain. So it is simply not correct that the process of seeking clemency from President Clinton was started after this motion. It was started well before this motion.

Third, I heard a lot of disjointed argument as to what the appropriate standard would be and what diGenova would be relying on and what he is relying on. The fact remains that Mr. Clinton, President Clinton is considering the fundamental fact to what extent did Mr. Pollard cause harm to the national security, to what extent did Mr. Pollard caused harm to agents as alleged by certain people. Now, it's true that President Clinton can assess this with his staff since he and members of his staff have the appropriate clearance. But certainly, Your Honor, that process in every context, and certainly this context, will be assisted and will be much fairer and more appropriate if counsel representing Mr. Pollard have access to the material and have the ability intelligently and authoritatively to discuss it, Albeit in a confidential setting, with members of the White House staff.

If that were not the case. Your Honor, courts would not need advocates. We would simply truck in all the documents and we would leave it to the court and the court clerks to decide all the issues. But just as the court typically is assisted through the adversary system and through the advocacy of counsel, so, too, in the clemency process, we believe the process is clearly aided by someone representing Mr. Pollard having the ability effectively and authoritatively to discuss these matters.

Two or three other points, Your Honor.

They raise a jurisdictional argument. They never raised a jurisdictional argument in their papers, so I don't know whether they have waived it or they haven't waived it. I would simply point out that they did not raise it in their papers.

Also, there is a Catch-22 argument -- there is a Catch-22 notion to what the Government is arguing, and that is, we're asking for information under the protective order but we're not using it for the 2255, so therefore, we don't need the information. The fact is that the protective order is what governs control of these particular documents. They happen to be court documents.

This is not an application to the Court to see other classified material. If that were the case, there might be some merit to the argument. We are not coming in here asking the Court under the guise of the protective order to give us access to other parts of the Government's case or file with respect to Mr. Pollard which was not part of the court record. Our application is limited to the court record. And I'm sure in many other contexts, parties, as well as third parties, have standing to come in and address how the court and the court docket handles sensitive material. There are applications by the media all the time, there are applications by other interested parties addressed to the documents that are in the court case.

I think we clearly have jurisdiction. This Court clearly has jurisdiction under the protective order to permit us access to these documents. When that protective order was negotiated and was then signed by the Court, it clearly, by its terms, anticipated that these documents, including documents created by Mr. Pollard himself, would be accessible to Mr. Pollard. So the jurisdiction is there. This Court has jurisdiction over its docket, it has jurisdiction over these five docket materials.

Your Honor, we have nine days to complete this process with President Clinton. We hope that we will have the ability to complete this process and successfully complete this process.

I have no response to the argument on Sentencing Guidelines [at this time]. Your Honor, we have made a separate motion which we think is very meritorious to vacate the sentence. If the sentence is vacated, undoubtedly there would be a new sentencing procedure, and we will address the appropriateness of sentence at that time. That has absolutely nothing to do with this case. Nor do the Sentencing Guidelines have anything to do with what is or is not relevant information, what does security-cleared counsel need to know in talking to the President of the United States, who is not bound by sentencing guidelines but simply by his sense of what is appropriate, by his sense of what is fair, by his sense of what is best in the interest of the United States. And we hope that he will find that it is best for the United States to grant clemency to Mr. Pollard.

And we would hope, Your Honor, that you will give us access to these 35 to 40 pages. There is no burden to the Government - it's the right thing to do. It's the fair thing to do. It's the just thing to do.

Thank you, Your Honor.

THE COURT: You know, your argument is most interesting, because just before your last principal clause, you suggested that the President doesn't really need to see this anyway.

MR. LAUER: Well, I think he -- I don't know what he needs. Your Honor. I just know that --

THE COURT; But I mean it appeared to me that that's what you just told me.

MR. LAUER: No, Your Honor. I don't know what he needs. All right? I hope --I don't know what the President needs to hear or doesn't need to hear. I know that people are advising the President against granting clemency, they are --Senator Shelby wrote a letter to the President that was referred to in The Washington post, I haven't seen the letter, basically saying the same type of thing that Mr. diGenova has said. I don't know to what extent there is -- to what extent that influenced the President or not. Nor Am I suggesting that it's a judicial province or counsel's province to try to guesstimate what will motivate the president or not. What I do know is, it's certainly fair and just for---

THE COURT: Excuse me. My poor marshal went out of here, asked them to stop that banging downstairs. The minute she comes back in the door, they start hammering again. I'm sorry.

Thank you. Don't go back.

MR. LAUER: What I do know, Your Honor, what I do know, Your Honor, is that Mr. Pollard is serving a life sentence. We have a President of the United States who has expressed great interest in looking at this situation. We have spoken with members of his staff. And I believe that in all fairness, if we have the ability to rebut these charges and to deal authoritatively with them --right now I can't deal authoritatively. What can I say? Well, I don't know what's in the sealed material. Maybe that's there. Maybe he did do more harm to the United States than the public record discloses. It leaves us off balance; it effectively prevents us from representing the client's interest, and it effectively prevents us from addressing the truth. It may very well be that the opponents to clemency are well-intentioned, or at least some may be more well intentioned than others, but they may also not have actually taken the time to study these 35 or 40 pieces of paper, they're relying on Mr. diGenova's opinion, and in all fairness, we should have the ability -- there's no risk to the Government, there's no harm to the Government, there's no burden to the Government. We should have the ability to access this material so we can authoritatively deal with it once and for all.

Thank you. Your Honor.


Did you wish to say anything concerning the allegation before I leave the bench?

MR. WALUTES: Thank you. Your Honor. That's the only thing I wanted to speak with regard to.

THE COURT: Okay. That's about the only thing I'll let you.

MR. WALUTES: Very well. Your Honor.

Your Honor, I haven't seen the document. The argument I'm applying to defense counsel I'm applying to myself. That is, if you don't have a need to know, you don't need to see it. I did contact the court security officer and ask them to look at the document and tell me if I had the necessary clearances myself to see it if this became necessary or relevant later in the case, and they told me it was code word protected, SCI.

I made that representation in my pleading in the footnote, so it's not like I was dancing around it; I made it,

The Court can very easily resolve this, Your Honor.

The director of the court security officer is Jerry Rubino, R-u-b-i-n-o. His telephone number is 514-2094. No judicial judge needs to have any clearances. You can call for the document and you can look. at it and see if it has a code word on it. I'm only relying upon the court security officer who told me that it was code word secured. And that's why I wanted to raise it. because defense counsel didn't have the right clearances.

Thank you. Your Honor.

MR. LAUER; Your Honor, I apologize, but Mr. Semmelman points out that the Government on May 17, 1990, in their opposition --

THE COURT: 1990? Did you say 1990?

MR. LAUER; 1990.

THE COURT: All right.

MR. LAUER; The United States Government's opposition to, this was defense's motion for access to classified materials, this was the motion made ten years ago, referred to the declaration as classified Top Secret. And I am quoting from page 2: "We also submitted in camera a declaration classified Top secret from then Secretary of Defense Weinberger detailing some of the damage that Pollard had caused."

I wasn't part of that conversation that they had with the security officer. I don't know what they're talking about. This is the United States Government. It's attached to my reply affidavit in further support of the emergency motion. And it was signed by Daniel S. Seikaly, Assistant United States Attorney, and Alan D. Strasser, Assistant United States Attorney,

Further, I will say that when I spoke with the security officer on November 2, when I was granted top security clearance, T specifically said, "Do I now have the ability to see these documents?" "Yes."

Now, you don't have to accept my version of what she told me or his version. You can accept the document that was submitted by the United States Government on May 17 describing the Weinberger declaration as classified Top Secret. And that's exactly what it is: It's classified Top Secret.

THE COURT: All right, counsel. I shall take this under advisement, and I hope to be able to call both of you by Noon tomorrow.

MR. LAUER: Thank you. Your Honor.

MR. WALUTES: Thank you. (Proceedings concluded at 2:55 p.m.)


I certify that the foregoing is a correct transcription from the record of proceedings in the above-entitled matter.

(signed by)
Gordon A. Slodysko
Official Court Reporter

See Also:
  • Legal Doc: Motion to Unseal the Pollard Record
  • Legal Doc: ACLU Amicus Brief
  • The Court Case Page 2000/01
  • The Clemency Page