National Security?

The Honorable George N. Leighton

Special to IMRA - November 5, 2002

In the ongoing national debate over the appropriate balance between preserving civil liberties and protecting national security, it is generally taken for granted that the government's invocation of "national security" is made in good faith. Indeed, in the context of combating international terrorism, the need for enhanced protection of national security is without dispute.

But there have been instances in which government officials have invoked "national security" inappropriately, as an excuse for curtailing an individual's rights even where national security was not at risk.

A troubling example of disingenuous government invocation of "national security" occurred recently in the case of Jonathan Pollard, the American who delivered classified information to Israel. On November 21, 2002, Mr. Pollard will begin serving his eighteenth year in prison. With his new attorneys, Eliot Lauer and Jacques Semmelman, Mr. Pollard is battling to vacate what many believe to be an unjust sentence of life in prison.

At the time Mr. Pollard was sentenced in March of 1987, the court placed under seal approximately forty pages of material filed in the court's docket. These included portions of a declaration by then-Secretary of Defense Caspar Weinberger, and portions of pre-sentencing memoranda submitted to the court by the government as well as by the defense. The materials were sealed because the government said they contained classified information, some of which could affect national security if disclosed inappropriately.

The sealing was achieved through the court's issuance of a "protective order," which provided a procedure whereby future attorneys for Mr. Pollard might seek and obtain access to the documents.

Mr. Pollard and his attorney at the time were permitted to read the sealed pages before sentencing. However, despite the provision in the protective order for future access, no attorney representing Mr. Pollard has been permitted to see these pages since 1987.

While this denial of access has severely hampered the efforts of Mr. Pollard's new attorneys to secure justice for their client, it has proved convenient for his adversaries. For years, adversaries have exploited the sealed pages to generate political opposition to relief for Mr. Pollard by spreading, in the press, rumors and outright falsehoods. Since the accusations floated in the media are nowhere to be found in the open court file, they would either be substantiated in the sealed pages, or not at all. As no one representing Mr. Pollard has been allowed access to the sealed pages, Mr. Pollard's adversaries have had unbridled license to spread falsehoods with virtually no risk of contradiction.

Mr. Pollard's attorneys must see the sealed pages so that, at a minimum, they can credibly challenge the rumors and falsehoods that continue to be disseminated, to their client's enormous detriment.

Mr. Pollard's lawyers are not engaging in a "fishing expedition," nor are they attempting to gain access to confidential government files which have never been shown to defense counsel. Mr. Pollard's lawyers are simply asking to see the very documents that Mr. Pollard and his original lawyer saw (and, in some instances, even authored) in 1987.

In accordance with the protective order, Mr. Pollard's current attorneys applied for the appropriate security clearances from the U.S. Department of Justice (DOJ) for the purpose of gaining access to the sealed pages. The DOJ thoroughly investigated the attorneys and then issued them "top secret" security clearances, telling them this was the clearance level required to see the sealed pages. However, when the security-cleared attorneys asked the DOJ for access to the sealed pages, the DOJ refused, claiming the attorneys have no "need to know" what is in their client's court file.

The attorneys filed a federal court motion asking for access to the documents. Recognizing the danger in allowing the government unilaterally to block security-cleared defense counsel from seeing their client's court records, the D.C. area chapter of the American Civil Liberties Union submitted an amicus curiae brief in support of access.

The DOJ vigorously opposed the motion, on what purported to be two separate grounds: one, that allowing access could endanger national security because the attorneys' "top secret" security clearances (the level selected by the DOJ, not the attorneys) were inadequate to allow them access to these materials, which carry a higher "SCI" (sensitive compartmented information) classification; two, that Mr. Pollard's lawyers have no "need to know" what is in their client's court file. The court accepted both of the government's arguments, and denied access.

The lawyers asked the court for reconsideration. They argued that even if some of the materials were highly sensitive, surely there were other portions that were less so. The lawyers asked the court at least to distinguish between the truly sensitive portions and the less sensitive portions, and allow access to the latter. The government did not respond to the motion for reconsideration. The court denied it without opinion.

Rep. Anthony D. Weiner (D-N.Y.), took an interest in the case and in the civil liberties issues implicated by the government's conduct. He wrote to the DOJ, asking it to identify those portions of the sealed materials that have classifications lower than SCI. The DOJ wrote back and evasively told the Congressman that the materials are classified "up to and including" SCI. The DOJ ignored the Congressman's request to identify the portions that had lower classifications, and, after much back-and-forth, finally told the Congressman to take up the inquiry with the Department of Defense.

Months after Congressman Weiner first intervened, the lawyers received a letter from the DOJ admitting that the government's investigation into the attorneys' backgrounds "would support SCI access" merely upon a showing of a "need to know." In other words, the government finally admitted that its only objection to access was lack of a "need to know," and that, contrary to what the government had told the court, allowing these attorneys access to the sealed pages would not pose any danger to national security.

Mr. Pollard's attorneys immediately asked the court to modify its order, which had been based upon the government's earlier misrepresentation that they pose a danger to national security. The request is pending.

The government's conduct in this case is highly disturbing. Lawyers have an unquestionable "need to know" what is in their client's court docket. How else can they represent their client? When the government takes the position that a lawyer has no need to know what is in his or her client's court docket, all Americans have cause for concern.

Even more troubling is the government's misrepresentation to the court regarding national security. The government had conclusively determined that these lawyers pose no danger to national security. But the government misrepresented the truth when it told the court otherwise, so as to obtain the ruling it desired. When the government misrepresents the facts in a court of law, there is cause for all of us to be concerned.

The Attorney General has the authority to grant access to the sealed pages.

Congressman Weiner and other elected officials have urged Attorney General John Ashcroft to make the sealed pages available to Mr. Pollard's attorneys. To date, these initiatives have been met with government stonewalling. Mr. Ashcroft should intervene and should ensure that the materials are made available to counsel in a secure setting.

When government officials invoke "national security" as justification for infringing on someone's civil liberties, we must critically examine the facts and circumstances of the case.

Unlike the real and immediate threat posed by international terrorism, the alleged threat posed by allowing Mr. Pollard's attorneys access to the sealed pages of his fifteen-year old court file is, as the government has now effectively conceded, non-existent.

By its conduct in that case, the government has demonstrated that its invocation of "national security" is not always made in good faith. If this kind of inappropriate government action remains unchallenged, we will see our valuable civil liberties eroded.

In balancing civil liberties against government needs, we must ensure that the government's stated needs-including its need to protect national security-are genuinely at stake, and that the "national security" label is not being abused.

Biographical Note:

Hon. George N. Leighton served as a United States District Judge for the Northern District of Illinois from 1976 to 1987. He was a Judge of the Circuit Court of Cook County, Illinois from 1964 to 1969, and a Justice of the Illinois Appellate Court from 1969 to 1976. He is a graduate of Howard University and Harvard Law School. Prior to his election to the Illinois bench, Judge Leighton was a prominent trial lawyer in Chicago, with a practice that revolved largely around criminal and constitutional litigation. During the 1950s and early 1960s, Judge Leighton was active in the civil rights and civil liberties movements, and handled important cases that established significant principles of law. Among many other distinctions, Judge Leighton has served as President of the Chicago branch of the NAACP, and as Chairman of the Bill of Rights Committee of the Illinois State Bar Association. He has been a member of the Illinois Division of the American Civil Liberties Union. Since 1965, he has been a member of the adjunct faculty at the John Marshall Law School in Chicago. Judge Leighton is currently Of Counsel to the firm of Earl L. Neal & Associates in Chicago.

[May be reprinted with appropriate attribution]

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