Legal Doc: Memorandum of Law

Defendant Jonathan J. Pollard ("Pollard"), by his undersigned attorneys, Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP, respectfully submits this Reply Memorandum in Support of his Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter (the "Motion for Modification").

The evidence uncovered since the Court issued its January 12, 2001 Memorandum Order (the "Order") establishes that the Government made significant misrepresentations to the Court which enabled the Government to defeat counsel's motion for access to the sealed materials in the Court's docket.

The Government told the Court that the defense attorneys "don't have the right clearances," namely, the "SCI" clearance needed to access the documents. (Tr. pp. 21, 25)¹

We now know, from the August 3, 2001 letter written by Court Security Officer Michael Macisso (the "Macisso Letter"), that while the Government was urging in the most strenuous terms that counsel lacked the necessary clearance, clearance was not an issue at all. The only issue was whether counsel had demonstrated a "need to know." Upon such a showing, the Macisso Letter admits that counsel would automatically receive SCI clearance, the level needed to see the documents.

The Government also told the Court that counsel had no "need to know" what is in the documents because they are "irrelevant" to the process of executive clemency. (Tr. pp. 24-25) The Government ridiculed the notion that documents prepared in 1987 could possibly still be relevant to a clemency determination. Stating that "it doesn't make sense why President Clinton would be using a damage assessment that was written over a decade ago," the Government argued that "if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality." (Tr. pp. 24-25)

However, a letter dated September 10, 2001 written by Assistant Attorney General Daniel J. Bryant (the "Bryant Letter") demonstrates the disingenuousness of the Government's statements to the Court. The Bryant Letter admits, contrary to the Government's statement that the documents are irrelevant, that at the very times Pollard was seeking clemency, Government personnel opposing clemency between 1993 and 2001 were unilaterally afforded access to the documents by the Department of Justice ("DOJ") on no less than 25 occasions.

This means that on 25 occasions the DOJ unilaterally decided that Government personnel had a "need to know" the contents of the sealed docket materials. Since the sealed docket materials comprise a sentencing file (not an intelligence file or a defense file), the 25 instances of access necessarily had to relate to events transpiring in connection with Pollard-such as applications for executive clemency, Congressional initiatives, and the like-as opposed to purely intelligence or defense matters unrelated to Pollard. Yet, the Government told this Court that defense counsel has no "need to know" what is in the sealed docket materials because they are out-of-date and irrelevant. (Tr. pp. 24-25)

Based upon the newly-discovered evidence, namely the Macisso Letter and the Bryant Letter, as well as a recent development in the case law (see Point III), the January 12, 2001 Memorandum Order should be modified, and counsel should be afforded access to the sealed docket materials.

STATEMENT OF FACTS

The Sealed Docket Materials

In the months preceding Pollard's sentencing on March 4, 1987, the Government and the defense each submitted sentencing memoranda and related materials to the Court. Pursuant to the terms of a Protective Order dated October 24, 1986 (the "Protective Order") (Lauer Aff. Ex. B),² a Court Security Officer reviewed the materials for classified information, and redacted the portions he deemed classified. Copies of these redacted materials are in the public record. However, the portions deemed classified by the Court Security Officer were placed under seal and have remained under seal. (Lauer Aff. 7)

Five documents were redacted in this manner.³ The redactions comprise approximately 35 to 40 pages in total.

Under the terms of the Protective Order, Pollard's sentencing counsel, Richard Hibey, was allowed access to the sealed docket materials, as was Pollard himself. Of the five documents at issue, one was authored by Pollard and another by Hibey.

Since Pollard's sentencing on March 4, 1987, no one representing Pollard has been allowed to see the sealed docket materials. Other than Pollard's sentencing counsel, no attorney for Pollard has ever seen any of the sealed docket materials.⁴ (Lauer Aff. 10)

For years, those opposed to executive relief for Pollard have engaged in a campaign of disinformation. Using their familiarity with the sealed docket materials as a basis for legitimizing their assertions, they have spread rumors and outright falsehoods as if they were fact. These rumors and falsehoods are promulgated in the media and are seen and heard by those in a position to directly influence decisions on executive clemency. (Lauer Aff. 13; Lauer Supplemental Aff. 2-7)

By way of recent example, during a televised debate in 2000 between New York senatorial candidates Hillary Clinton and Congressman Rick Lazio, moderator Tim Russert of NBC asked the candidates a question concerning Pollard. (Tr. pp. 7-8) Because of a factual inaccuracy in the formulation of the question, counsel for Pollard wrote to Mr. Russert demanding a correction. (Id. at p. 7)

The following Sunday, on Meet the Press, Mr. Russert corrected what he had said at the debate. (Id.) However, he went on to say that he had spoken to the "chief prosecutor" who had told him that Pollard had identified "agents in the field." (Id. at p. 8) Counsel immediately wrote to the chief prosecutor, Mr. diGenova, and demanded to know the basis for such an allegation, which appears nowhere in the public record. (Id.) In response, by letter dated September 20, 2000, Mr. diGenova admitted that his statement to Mr. Russert that Pollard had supposedly identified U.S. "agents in the field" was not a fact at all but merely "my professional opinion . . . ." (Ex. C to Lauer Aff. at p. 1) (emphasis in original).

When Mr. diGenova, who unquestionably has had access to the sealed docket materials, told Tim Russert that Pollard identified "agents in the field," Mr. Russert naturally reported that on Meet the Press as a fact, rather than as the mere "opinion" that it turns out to be. In the face of tactics of this type, Pollard's efforts at securing executive clemency have been rendered all but impossible.

Basic fairness mandates that counsel for Pollard have access to the sealed docket materials to determine what they contain, and to be able to speak (without, of course, revealing their contents) credibly and authoritatively about what Pollard did and did not do.

New Pro Bono Counsel Enter the Case and Obtain Security Clearance

On May 17, 2000, Pollard retained the undersigned as his pro bono counsel.

New counsel did not know the classification level of the sealed docket materials. As a result, counsel applied to the DOJ for whatever level of clearance would be necessary to access the sealed docket materials. Counsel informed the DOJ that clearance was being sought in connection with this case, specifically for purposes of gaining access to the sealed docket materials. It was up to the DOJ to ascertain which level would be needed, and, assuming counsel passed the background check, the DOJ would confer the appropriate clearance level. (Lauer Reply Aff. 41; Tr. p. 28)

Mr. Lauer wrote to then-U.S. Attorney Wilma Lewis, asking her to allow counsel access to the sealed docket materials subject to receiving security clearance. (Exhibit D to Lauer Aff.) Mr. Lauer enclosed a copy of a letter written by Mr. diGenova on September 20, 2000 in which Mr. diGenova had recommended that counsel "seek the appropriate security clearances and read the classified damage assessment." (Ex. C to Lauer Aff.) (emphasis added).

In a letter dated October 26, 2000, Ms. Lewis stated that the Government did not consent to counsel's having access to the sealed docket materials. (Exhibit E to Lauer Aff.)

On November 2, 2000, following a thorough investigation by the Government, Mr. Lauer was granted "Top Secret" security clearance by the DOJ.⁵ (Lauer Aff. 14)

On November 6, 2000, Mr. Lauer wrote to the U.S. Attorney, informing her of his recently-granted security clearance and asking her to reconsider her position and allow access to the sealed docket materials. (Ex. F to Lauer Aff.) No response was received.

The Emergency Motion

On November 29, 2000, counsel for Pollard filed an "Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order" (the "Emergency Motion"), which asked the Court, in accordance with the provisions of the Protective Order, to add Mr. Lauer's name to the list of persons authorized to see the sealed docket materials.

In support of the Emergency Motion, Mr. Lauer explained that he required access to the sealed docket materials in order to represent his client effectively in connection with an application for executive clemency to President Clinton, then in the final weeks of his administration. (Lauer Aff. 12, 13, 22)

Certain persons (including Mr. diGenova), who were opposing executive relief for Pollard had seen the sealed docket materials. Counsel for Pollard needed to see the sealed docket materials in order to address and counteract the exploitation of the materials by Pollard's adversaries.

Mr. Lauer explained:

In the past, various current and former government representatives have made reference to the contents of the sealed docket materials as justification for opposing executive relief. In order to represent Pollard effectively, it is essential for counsel to see what is in the sealed docket materials, so that (consistent with maintaining the confidentiality of the materials) counsel may address and respond to arguments by those who oppose executive relief on the basis of what is set forth in the sealed materials.

Counsel also submitted a letter written by Congressman Anthony Weiner to U.S. Attorney Lewis, stating that "[t]hroughout 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, contain evidence which warrants a denial of executive clemency or commutation." (Ex. G to Lauer Reply Aff.)

The Emergency Motion was not a discovery motion. Counsel was not asking to see anything that had not previously been shown to Pollard and his prior counsel. New counsel was asking to be placed on the same footing as prior counsel.

In support of the Emergency Motion, the American Civil Liberties Union of the National Capital Area ("ACLU") filed an amicus curiae brief.

The ACLU argued that "the Protective Order plainly contemplates that successor counsel will have access to the sealed materials," noting that by the express terms of the Protective Order, "other individuals" who are not government officials could obtain access to the classified materials by following the procedures set forth in the Protective Order." (ACLU Brief at p. 8) (block capitals omitted). The ACLU observed that "[i]t is difficult to imagine what non-governmental individuals could have been more in the minds of the drafters of the Protective Order as likely individuals to receive future access to the sealed materials in the record than successor counsel to Mr. Pollard's then-defense attorney." (ACLU Brief at p. 8)

The ACLU also argued that "the Government's attempt to withhold classified information from Pollard's security cleared counsel undermines the adversarial process." (ACLU Brief at p. 12) (block capitals omitted). The ACLU Brief pointed out that

While an application for clemency is an extra-judicial proceeding, it is still, plainly, an adversarial process in which the United States Attorney and the Department of Justice are (at least in this case) on the opposite side of the applicant.

(ACLU Brief at pp. 12-13) (emphasis added).

The Government's Opposition to the Emergency Motion

The Government opposed the Emergency Motion on what were presented as two separate and distinct grounds. One ground was that Mr. Lauer had only been granted "Top Secret" security clearance, while the sealed docket materials carried a higher, more sensitive designation-"SCI." (Govt's Opp. filed Dec. 8, 2000, at p. 7 n. 9) The Government claimed that, irrespective of any "need to know," Mr. Lauer's "present clearance is insufficient to review the classified declaration of Secretary Weinberger, which contains Sensitive Compartmented Information (SCI) . . . which must be handled within formal limited-access control systems established by the Director of Central Intelligence." (Id.) (emphasis added).

The other ground asserted by the Government in opposition to the Emergency Motion was that, irrespective of clearance, counsel had no "need to know" what was in the sealed docket materials. (Id. at pp. 5-8) The Government argued that the sealed docket materials were irrelevant to clemency, which is not "an adversarial process." (Id. at p. 8) The Government chided the amicus curiae for contending that "executive review is essentially an 'adversarial process,' a proposition for which they offer no legal basis." (Id.)

While the Emergency Motion was pending, a December 13, 2000 New York Times article appeared, reporting on Pollard's pending request for clemency. Referring to prior clemency applications, the article stated that "[l]aw enforcement and intelligence agencies have vigorously opposed such a step, saying that Pollard's crimes were far too serious to provide any basis for clemency. Each time, faced with unequivocal opposition, Mr. Clinton has backed away from the case." (Ex. J to Lauer Supplemental Aff. at col. 3)

The article quoted Mr. diGenova saying "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." (Id.)

On December 14, 2000, Pollard's counsel submitted the New York Times article to the Court, and urged that remarks such as those made by Mr. diGenova while a clemency application is pending "are precisely what necessitates counsel's access to the sealed court docket." (Lauer Supplemental Aff. 5)

The Oral Argument

Oral argument was held before Judge Johnson on January 11, 2001. A major focus of the oral argument was whether or not Mr. Lauer had the proper security clearance to see the classified materials. Based upon an earlier written representation by the Government that the documents were classified no higher than "Top Secret" (Ex. I to Lauer Reply Aff. at p. 2), Mr. Lauer argued that his Top Secret clearance was sufficient, and that the Government's belated claim that the documents were classified "SCI"-higher than Top Secret-was contradicted by the Government's earlier representation. (Tr. pp. 27-29)

The Government contended that Mr. Lauer was flatly wrong. The Government dramatically escalated its efforts to persuade the Court that Mr. Lauer lacked the qualifications to gain access to such high-level national security secrets:

What they [defense counsel] did is they went and got this 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 [sic] Compartmentalized [sic] Information. It is code word protected. And they don't have the code word clearance. . . . 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.

(Tr. p. 21) (emphasis added).

Later in the oral argument, the Government reiterated: "They don't have the right clearances." (Tr. p. 25) The Government urged Judge Johnson to "call for the document and you can look at it and see if it has a code word on it." (Tr. p. 36) (emphasis added)

On the issue of "need to know," the Government argued that the sealed docket materials were irrelevant to the clemency process. Contending that "it doesn't make sense why President Clinton would be using a damage assessment that was written over a decade ago," the Government argued that "if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality." (Tr. pp. 24-25) The Government emphasized that "any unnecessary dissemination of classified information creates a greater risk that it will be compromised" and that "[y]ou have to limit the number of people who see it, and that limitation enhances the security attached to that information." (Tr. p. 22) (emphasis added)

The Government's tactics worked. By Memorandum Order dated January 12, 2001 (the "Order"), the Court denied the Emergency Motion. The Court identified the Government's two separate arguments in opposition to the motion:

The government opposes the motion of defense counsel to view the classified materials. It argues that the disclosure of the classified materials would pose a risk to national security. Moreover, the government claims that defense counsel has not established a "need to know" the classified materials, and thus, the motion should be denied.

(Order at p. 2) (emphasis added).

The Order proceeded to analyze separately each of the Government's arguments. In the section of the Order devoted to the national security issue, the Court accepted the Government's argument:

The government argues that the disclosure of the classified materials to Mr. Lauer poses a risk to national security. The government asserts: "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."

The Court has viewed the classified materials and finds that the exceptionally grave concern over national security is warranted.

(Id. at pp. 2-3) (citations omitted) (emphasis added).

Thus, the Court accepted the Government's invitation to look at the sealed docket materials to "see if it has code word on it" (Tr. p. 36), which the documents evidently did. The Court credited the Government's representation that Mr. Lauer could not see SCI documents and that, as a result, affording him access posed a risk to national security.

The Court also accepted the Government's assertion that counsel had no "need to know."

The Motion for Reconsideration

On January 19, 2001, still unaware of any Government misrepresentation, Pollard's counsel filed a Motion for Reconsideration and Modification of the Court's January 12, 2001 Order (the "Motion for Reconsideration").

For purposes of the Motion for Reconsideration, counsel labeled each redacted portion of each of the five documents with the designations "R1" through "R 88." (Exs. A-E to Motion for Reconsideration) Based upon the size of the redactions, it was apparent that certain redactions were as short as a single word, while others went on for several pages. Counsel urged that even if some portions of some of these 88 redacted segments contained information that, if disclosed, would pose a grave risk to national security, surely that description could not apply to each redaction.

Accordingly, counsel requested that the Court grant reconsideration and at least provide access to those redacted passages that did not contain information that, if disclosed, would pose a grave risk to national security.

Counsel also addressed any possible argument of mootness. As of the date of the Motion for Reconsideration, President Clinton had not announced any decision whether to grant clemency to Pollard. Counsel pointed out that, in the event the President denied clemency, counsel would continue to require access to the materials in connection with contemplated future applications for executive clemency. As a result, in the event President Clinton left office without having granted clemency, the Motion for Reconsideration would not have become moot.

The Government did not respond to the Motion for Reconsideration.

President Clinton left office, granting executive clemency to some 140 people. Pollard was not among them.

The Macisso Letter

On May 7, 2001, in response to a request made on March 14, 2001 by Congressman Weiner (Ex. B to Semmelman Aff.), Acting Assistant Attorney General Sheryl L. Walter wrote that "[t]he classified portions of the record in this case are classified up to and including Top Secret/Sensitive Compartmentalized [sic] Information (TS/SCI). . . ." (Ex. C to Semmelman Aff. at p. 1) (the "Walter Letter").

The Walter Letter also stated "that the Department of Justice Court Security Office is responsible for maintaining the documents and ensures that access to these documents is limited only to those having the appropriate clearances, necessary need-to-know, and since Mr. Pollard's sentencing, the Court's permission." (Id. at p. 2) (emphasis added)

In reaction to the Walter Letter, on May 15, 2001, defense counsel wrote to the Court Security Officers, enclosing the Walter Letter. (Ex. D to Semmelman Aff.) Counsel reminded the Court Security Officers that they had applied for security clearance "specifically to be able to gain access to the classified documents and information in the Pollard case." (Id. at p. 1)

Counsel then made the following request:

In the event you determine that these documents, or portions thereof, are indeed classified at a level that is higher than Top Secret, we request that you take appropriate steps to grant us whatever clearance is required to allow us access to these documents. Of course, we will cooperate fully and provide any additional information that may be required.

Again, we understand that you cannot speak to the issue of our "need to know." We ask that you put that issue aside and focus solely on the classification level we would require, assuming we could show a "need to know."

(Ex. D to Semmelman Aff. at p. 2) (emphasis added).

On August 3, 2001, Court Security Officer Michael Macisso responded to the May 15, 2001 letter. (Ex. A to Semmelman Aff.). The Macisso Letter is written on DOJ letterhead, addressed to Mr. Lauer with a copy to the Court.

In a very significant admission, the Macisso Letter states:

Even though your background investigations

will support SCI access

, there are other criteria which must be met, including an SCI indoctrination briefing and a "need to know" determination from the Court or the government. . . . Absent a "need to know" ruling from the Court or the government, the Department of Justice will not be able to upgrade your clearance level or provide you access to this material.

(Ex. A to Semmelman Aff.) (emphasis added).

The significance of the Macisso Letter is that it concedes what the Government had previously denied-that the Government's background investigation "will support SCI access," and that SCI access will be given automatically if the Court finds, or if the Government agrees, that counsel has a "need to know."⁶ (Id. at p. 1) (emphasis added) Thus, there is no issue of "national security" or inadequate clearance separate and apart from "need to know," as the Government had urged so successfully in opposition to the Emergency Motion.

The Macisso Letter establishes that the Government's opposition to the Emergency Motion was based upon a false representation-that allowing Mr. Lauer access to the documents (even if he could show a "need to know") would pose a grave risk to national security. The Court accepted and relied upon the Government's representation, as its Order reflects.

The Order Denying the Motion for Reconsideration

On August 7, 2001, the same day counsel received the Macisso Letter in the mail,⁷ Judge Johnson issued a one-page Order denying the Motion for Reconsideration.

On August 16, 2001, counsel filed the pending Motion for Modification.

The Bryant Letter

Starting in March of 2001, Congressman Weiner attempted to find out from the DOJ the number of people who had been afforded access to the sealed docket materials since Pollard's sentencing. (Ex. B to Semmelman Aff.) The Government stonewalled, taking the disingenuous position that that number was itself "under seal by order of the court." (Ex. C to Semmelman Aff. at p. 2) Finally, unable to sustain that position, on September 10, 2001 (after this Motion for Modification was filed), the DOJ sent Congressman Weiner the Bryant Letter, which admitted:

With regard to the number of persons having access to the documents since Mr. Pollard's sentencing, we can only provide the number of visits recorded in the log of the Security and Emergency Planning Staff. There were 25 instances of access recorded between November 19, 1993 and January 12, 2001. In some instances, a single individual accessed the documents on more than one occasion. The Department cannot provide the number of instances of access to copies of the documents occurring at other agencies, such as the Department of Defense, or by defense and prosecution teams during the course of litigation.

(Ex. F to Semmelman Reply Aff.) (emphasis added).

Thus, separate and apart from access at other agencies, we now know that between November 19, 1993 and January 12, 2001 there were 25 instances in which people were allowed access to the sealed docket materials by the DOJ alone.

It is important to note that the sealed docket materials comprise a court sentencing file, not an intelligence file or a defense file. Thus, while the Bryant Letter does not disclose the circumstances under which the 25 instances of access were allowed by the DOJ, the access necessarily had to be related to events transpiring in connection with Pollard, as opposed to purely intelligence or defense matters unconnected to Pollard. It stands to reason that persons concerned with pure intelligence or defense matters would have accessed the underlying intelligence and defense materials in the custody of other agencies, not the Pollard docket materials prepared for sentencing. Thus, the 25 instances of access must have been linked to such things as Pollard's applications for executive clemency, Congressional initiatives involving Pollard, and the like.

In addition, the two dates mentioned in the Bryant Letter-November 19, 1993 and January 12, 2001-are both highly significant.

On November 11, 1993, the Jerusalem Post reported that Israel's Prime Minister Yitzhak Rabin had asked President Clinton to commute Pollard's sentence, and that the President had asked the DOJ to review that request. President Clinton announced that "I will not make a decision on the Pollard case until I get" the DOJ's review. (Ex. I to Semmelman Reply Aff.)

On November 13, 1993, the New York Times reported that "President Clinton made clear that he was seriously considering Mr. Rabin's request to commute the sentence of Jonathan Pollard," but that "[t]he intelligence agencies and the Justice Department have been hostile to the idea of commuting the sentence . . .". (Ex. J to Semmelman Reply Aff. at p. 6)

On November 18, 1993, Attorney General Janet Reno was asked at a press conference about the status of the DOJ review. She responded that "I asked the deputy attorney general to talk with the pardon office and to make a recommendation to me." (Ex. K to Semmelman Reply Aff. at p. 10)

Based on these facts, and the Bryant Letter, we now know that starting November 19, 1993, Government personnel were accessing the sealed docket materials in connection with President Clinton's request for a review of the case so that he could make a decision on commutation. Given the hostility of the "intelligence agencies and the Justice Department" to commutation (Ex. J to Semmelman Reply Aff. at p. 6), it is now evident that persons opposed to clemency for Pollard were permitted by the DOJ to access the documents, and thus were able to make their presentation to the President in opposition to clemency with the advantage of having seen the sealed docket materials.

Not surprisingly under the circumstances, President Clinton denied commutation.

January 12, 2001 has comparable significance, as it was precisely during that time frame that counsel for Pollard was communicating with the White House in connection with a pending clemency application, which, once again, was denied. (Lauer Reply Aff. 5)

I. The Court Should Modify the Order Based Upon the Macisso Letter

The Macisso Letter effectively acknowledges that there is no risk to national security based upon counsel's clearance, inasmuch as SCI clearance will be granted upon showing a "need to know." Accordingly, the Court should modify the Order to reflect (a) that the Government's "national security" argument based upon clearance level is simply its "need to know" argument in another form, and (b) that allowing Mr. Lauer access to the documents would not pose a risk to national security.

In addition, it is impossible to determine the extent to which Judge Johnson's concern over security clearance-based upon the Government's now discredited representations-influenced her determination on "need to know." In light of the Macisso Letter negating any national security issue as it relates to Mr. Lauer's clearance, the Court should also modify its "need to know" finding.

III. The Court Should Modify the Order Based Upon the Bryant Letter

The Bryant Letter establishes that at times most crucial to the issue of whether the President should grant clemency, Pollard's adversaries in the DOJ (and possibly elsewhere in the Government) were repeatedly allowed unilateral access to the sealed docket materials, and were able to use them to advance their agenda with the President, to the severe detriment of Pollard. These facts are in stark contrast to the Government's assertion, in opposition to the Emergency Motion, that the sealed docket materials were irrelevant because "if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality." (Tr. p. 25)

Moreover, since the Walter Letter admits that any access was "limited only to those having . . . necessary need-to-know" (Ex. C to Semmelman Aff. at p. 2), it follows that, for purposes of opposing executive clemency, the DOJ readily agrees that Government personnel have a "need to know" the contents of the sealed docket materials.⁸

The Bryant Letter establishes that during a period of about seven years, there were 25 instances in which someone was able to demonstrate to the satisfaction of the DOJ a "need to know" what is in the sealed docket materials. Yet, not once since March 4, 1987 has an attorney for Pollard been allowed to see the documents that have been seen repeatedly by Government personnel. If persons in the Government had a "need" to see the documents so many times in connection with efforts hostile to Pollard (whether in connection with executive clemency, Congressional initiatives, or otherwise), logic and basic fairness mandate that counsel for Pollard have the same "need" to see the documents in support of clemency and other initiatives, in order to credibly challenge what Pollard's adversaries have said based upon their viewing of the documents.

The Court should remedy the injustice resulting from the DOJ's unilateral allowance of access so many times, and hold that Pollard's counsel indeed has a "need to know" what is in the sealed docket materials for purposes of making a clemency application and in connection with other political initiatives, just as the DOJ has determined unilaterally that Government personnel have a "need to know" what is in those materials in order to oppose clemency and for other purposes inimical to Pollard.

V. The Court Should Modify the Order Based Upon Recent
Case Law Establishing That a Clemency Application of
Which the DOJ Has Notice is Considered an "Adversarial" Proceeding

In its opposition to the Emergency Motion, the Government argued that a clemency application is not an "adversarial" proceeding. (Govt's Opp. filed Dec. 8, 2000, at p. 8) Judge Johnson agreed with that position. (Order at p. 3) However, a case decided after the instant Motion for Modification was filed establishes that where the DOJ has notice and an opportunity to oppose a clemency application, that application is considered an adversarial proceeding.

In Grand Jury Subpoenas, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) (decided Dec. 13, 2001), the issue was whether attorney memoranda and notes generated in connection with efforts to obtain executive clemency for Marc Rich were entitled to work product protection, so as to shield them from subpoena.

The court found that they were not work product, because in that case the pardon process "was not an adversarial one." Id. at 287; see also Id. at 288-89. Significantly, however, the court's finding was based upon the fact that Rich's lawyers had bypassed the DOJ, and had instead approached the President directly. As a result, "the Marc Rich Lawyers had no adversaries and the proceeding was entirely ex parte." Id. at 288.

The court wrote:

If the guidelines set forth in the [pardon] regulations had been followed, the Petition would have been submitted to the Pardon Attorney, Department of Justice would have caused an investigation to be made, the Southern District would have been consulted, and the proceedings would not have been ex parte.

Id. at 289 (emphasis added).

Grand Jury Subpoenas stands for the principle that, when the DOJ has been given notice and an opportunity to oppose a clemency application, that application is considered an adversarial proceeding.

The decision in Grand Jury Subpoenas is inconsistent with Judge Johnson's ruling that Pollard's counsel had no "need to know" what is in the classified documents because "the President has access to the classified materials and has the authority to independently review them without the assistance of Mr. Lauer." (Order at p. 3) (emphasis added). That ruling is completely at odds with the notion that clemency is an adversarial proceeding, since an adversarial proceeding necessarily entails input from both sides.

Pollard's lawyers did not conceal their efforts from the DOJ. The DOJ knew full well that Pollard had submitted a clemency application. By November 29, 2000 the DOJ was formally on notice (through the Emergency Motion) that Pollard was contemplating a clemency application. On December 12, 2000, counsel represented in reply papers that a clemency application had been submitted. In addition, Mr. Lauer spoke to the New York Times about the clemency application while it was pending, and the December 13, 2000 story was submitted to the Court on December 14, 2000. (Ex. J to Lauer Supplemental Reply Aff.) That article even quoted Mr. diGenova's opposition to clemency. (Id.)

Pollard's clemency application was not clandestine. The DOJ had notice and the opportunity to contest the application, which, under Grand Jury Subpoenas, is all that is required for a finding that clemency is an adversarial proceeding. That case, a new development in the law that post-dates the Order, the August 7, 2001 Order, and this Motion for Modification, further establishes that counsel have a "need to know" what is in the sealed docket materials, so as to effectively represent their client in adversarial clemency proceedings.

VII. The Government's Opposition to the Motion for
Modification Fails to Acknowledge its Proven Misconduct
and Instead Disingenuously Perpetuates its Wrongdoing

Instead of candidly admitting that it had misrepresented Mr. Lauer's security clearance to Judge Johnson, the Government's opposition perpetuates the wrongdoing.

The Government argues that Mr. Macisso, the Court Security Officer, is not the "Government" because he is not part of "the U.S. Attorney's Office or another prosecuting official," and therefore, says the Government, "there was no letter by the 'Government' suggesting" that there is no issue of national security based upon counsel's clearance. (Gov't Mem. at pp. 7-8)

The Macisso Letter is written on DOJ letterhead by an authorized person specifically entrusted with handling court security issues. The Government itself invoked the authority of the Court Security Officer when it was in its interest to do so. At oral argument, the Government told the Court: "I'm only relying upon the court security officer who told me that it was code word secured." (Tr. p. 25) (emphasis added). The Macisso Letter is indeed a "Government" letter.

Next, the Government argues that the Macisso Letter does not say that there is no concern about national security based upon counsel's clearance level. (Gov't Mem. at pp. 9-10) But the Macisso Letter says, on its face, that defense counsel will receive SCI clearance upon showing a "need to know." The Government told Judge Johnson that defense counsel lacked appropriate security clearance even if counsel could show a "need to know." The Government told Judge Johnson that "[d]efense counsel's present clearance is insufficient," and "[t]they don't have the right clearances." (Govt's Opp. filed Dec. 8, 2000 at p. 7 n. 9; Tr. p. 25) Those representations were made without any linkage to "need to know."

The Macisso Letter exposes the Government's misrepresentation. It ill behooves the Government to insist that the Macisso Letter does not say what it says, and that it is somehow fully consistent with the Government's stated position all along.

The Government then pursues a different tack. The Government claims that we misunderstood Judge Johnson's ruling, and that supposedly Judge Johnson "found that defendant's new lawyer had the appropriate security clearances[.]" (Gov't Mem. at p. 12) The Government distorts Judge Johnson's observation that "Mr. Lauer has obtained security clearances" (Order at p. 3) into a finding that Mr. Lauer's specific clearance was sufficient.

We accept the Government's belated admission that Mr. Lauer has the appropriate clearance. We reject the Government's claim that Judge Johnson made such a finding.

To the contrary, the Order addressed separately the issues of "national security" and "need to know." Accepting the Government's invitation to look at the sealed docket materials to "see if it has code word on it" (Tr. p. 36), Judge Johnson stated that she had done so (Order at p. 3), and ruled in favor of the Government on both grounds. It is impossible to reconcile the Order with the Government's present contention that Judge Johnson supposedly "found that defendant's lawyers had the appropriate security clearances[.]" (Gov't Mem. at p. 12)

The Government also argues that the clearance issue is irrelevant in any event, because we still have not shown a "need to know." (Gov't Mem. at pp. 10-13) The Government refers to "this long closed matter," and expresses concern over "breaching the secrecy of the classified materials in this case." (Gov't Mem. at pp. 2, 11) The Government asserts that "[a]uthorizing additional individuals to view the classified materials increases the risk of disclosure to unauthorized persons and thus causes a real risk to national security." (Gov't Mem. at p. 10) The Government tries to create the illusion that the sealed docket materials are buried in the catacombs, long-dormant and unrelated to any ongoing activity.

However, the Bryant Letter admits that between November 19, 1993 and January 12, 2001, the DOJ accorded access to the sealed docket materials to Government personnel at least 25 times. This gives the lie to any notion that the matter is dormant or that, within Government channels, access to the documents has been severely confined in any meaningful sense. To the contrary, the parade of viewings since November 19, 1993 shows a high level of activity, and the "need" by Government personnel "to know" what is in those documents so that they can oppose clemency and other political initiatives with the advantage of having seen the sealed docket materials. We have no less of a "need to know."

The Government claims that we "still have not demonstrated that [our] viewing of the classified portions of the documents are 'essential to the accomplishment of lawful and authorized Government purposes.'" (Gov't Mem. at p. 11) (quoting Exec. Order No. 12356, § 4.1(a)) Contrary to the Government's insinuation, this phrase does not mean that only Government personnel may have access to the sealed docket materials. Indeed, since the Government's "purpose" is to seek truth and do justice, Strickler v. Greene, 527 U.S. 263, 281 (1999); Berger v. United States, 295 U.S. 78, 88 (1935), counsels' effort to access the documents for that very purpose is very much within "lawful and authorized Government purposes."

Finally, the Government argues that because at this instant there is no pending application for executive clemency, we have no "need to know." (Gov't Mem. at pp. 11, 13) The Government is wrong. The fact that no application is pending at this moment does not deprive us of the "need to know." We represent without equivocation that we intend, at the appropriate time, to make an application for executive clemency. However, we cannot be whipsawed by having to wait until the application is pending to first see the documents. We need to see the documents in order to formulate an effective and viable strategy for executive clemency and related initiatives, including continuing to work with Members of Congress.

In addition, once an application has been submitted to the President, we will need to address with the President's advisors, quickly and professionally, any issues that arise in connection with the sealed docket materials. We cannot wait until those discussions are underway before first applying to the Court to see the documents. The clemency process does not allow for that. The DOJ and other Government agencies have full access to the documents and will exploit them to fight any clemency application. We are entitled to the same access.

The time to adjudicate the issue is now. We have a "need to know," and therefore a right to see the sealed docket materials, now, before we file another application for clemency.

The Government's conduct in this case is inexcusable. Counsel has made an ample showing of "need to know." As the Macisso Letter admits, that automatically qualifies counsel for SCI clearance, and therefore the right to see the sealed docket materials.

Conclusion

The Court should modify the Order and allow counsel access to the sealed docket materials.

Dated: May 9, 2002

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

________________________________________
Eliot Lauer (D.C. Bar No. 203786)

________________________________________
Jacques Semmelman (Admitted pro hac vice)

1200 New Hampshire Avenue, N.W.
Suite 430
Washington, D.C. 20036
(202) 452-7373 Fax (202) 452-7333

-and-

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000 Fax (212) 697-1559

Attorneys for Jonathan Jay Pollard

CERTIFICATE OF SERVICE

BAIRBRE KENNEDY certifies as follows under penalty of perjury:

On May 9, 2002, I caused to be served by hand delivery a true copy of the foregoing Defendant's Reply Memorandum in Support of Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter on:

Steven Pelak, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

_____________________________________
Bairbre Kennedy

Footnotes

Table of Contents

Note: Page numbers refer to original document.

Page #

Preliminary Statement 1

STATEMENT OF FACTS 3

ARGUMENT 17

Conclusion 25

See Also:

• May 9: Legal Doc: Reply Affidavit in Support of Motion for Modification
• May 9: Legal Doc: Reply Memo in Support of Motion for Reconsideration of August 2001 Order, or for Issuance of Certificate of Appealability
• May 9: Legal Doc: Motion to Enlarge Scope of Pending Motion for Modification Based on Newly Obtained Evidence
• May 9: Legal Doc: Government's Response to Pollard's Second Motion

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• The Legal Texts Page