Legal Doc: Govt's Response to Motion for Status Conference - Part II

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD
Defendant
Criminal No. 86-0207 (TFH)

GOVERNMENT'S OPPOSITION TO DEFENDANT'S
MOTION FOR STATUS CONFERENCE

The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully files this opposition to the defendant's motion for a status conference dated January 15, 2003.

In summary, in connection with his second motion for reconsideration of the Court's January 12, 2001 Order denying access to classified materials, defendant Pollard now requests a status conference and an evidentiary hearing in this matter. Defendant Pollard demands such a hearing based on the claim that the Court's Security Officer in charge of classified materials filed with the Court "does not maintain even the most basic control to monitor who is afforded access" to classified materials in this case. Deft. Motion at 4. Defendant Pollard's motion for a status conference and evidentiary hearing is baseless and should be denied.

A. Procedural Background

Below is a brief summary of the procedural background to defendant Pollard's repeated attempts to obtain access to classified materials held by the Court Security officer. More detailed outlines of the procedural background concerning those repeated attempts as well as defendant's criminal conduct, guilty plea, and sentencing are presented in the Court of Appeals' opinion at United States v. Pollard 959 F2d 1011, 1015-18 (D, C, Cir.) cert. 506 U.S. 915 (1992), and in the government's April 9, 2002 Opposition to Defendant's Second motion for Reconsideration of Modification of the Court's January 12, 2001 Order.

Pursuant to the Classified Information Procedures Act ("CIPA") and the Court's October 24, 1986 Protective Order, classified materials filed with the Court in this criminal prosecution were entrusted to the Court Security Officer. The Court designated or appointed the Court Security Officer in its October 1986 Protective Order. (1) Although the Court Security Officer is part of the Security and Emergency Planning Staff of the Department of Justice, the Court Security Officer works and acts on behalf of and at the direction of the Court.

(1) A copy of the October 1986 Protective Order (1) is attached as Exhibit 4 to the government's April 2000 Opposition Memorandum.

Beginning in 1990 or before, defendant Pollard began attempts to secure access for new defense counsel to classified materials held by the Court Security Officer in this matter. On three prior occasions, the Court has denied defendant Pollard's motions for access to those classified materials for defendant's various new defense counsel.

First, in September 1990, Chief Judge Aubrey Robinson denied that request. United States v. Pollard 747 F. Supp. 797, 806-07(D.D.C. 1990). That decision was subsequently affirmed by the Court of Appeals. United States v. Pollard, 959 F2d 1011m 1031 b.15 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992). Second, on January 12, 2001, Chief Judge Norma Holloway Johnson, after extensive briefing and oral argument, denied defendant's November 2000 motion for access to the classified materials and again found that new defense counsel had not demonstrated a "need to know" the contents of the classified materials in the context of defendant's apparent efforts to obtain executive clemency. Finally, in August 2001, Chief Judge Norma Holloway Johnson again denied defendant's motion for reconsideration of the denial of access to the classified materials.

B. Defendant's motion for Status Conference or Evidentiary Hearing is Baseless

No need exists to hold further oral argument or an evidentiary hearing in this matter. From 1990 until today, this matter has been extensively briefed on at least four occasions, including the pending motion, and has been argued by highly skilled defense counsel on prior occasions both before the Court and before the Court of Appeals. Nothing new or different calls for the Court at this stage to hold an additional hearing and thus expend further judicial resources on this matter.

The defense has consistently failed to establish a "need to know" in this matter justifying access to the classified records filed with the Court. The Court previously held oral argument in this matter before denying defendant's identical motion in January 2001. After that oral argument and in the context of an apparently pending petition for executive clemency, the Court denied defendant's motion based on the following reasoning:

"The Court finds that [defense counsel] Mr. Lauer has not demonstrated a "need to know" the contents of the classified materials. First, the President has access to the classified materials and has authority to independently review them without the assistance of Mr. Lauer. Second, there is no evidence that the President, who has the authority to make the decision on whether to grant or deny clemency, has specifically asked Mr. Lauer questions about the contents of the sealed materials. Third, the President has available for review the memoranda prepared by defendant's previous attorney, who had access to the classified materials and commented extensively on the classified materials at the time of sentencing." 1/12/01 Order at 3-4.

Given that there is no pending application for executive clemency by defendant Pollard, the reasons supporting the Court's conclusion in the January 2001 Order are even stronger today in 2003 than in January 2001.

In his motion for a status conference, defendant Pollard now suggests that a November 20, 2002 letter by Assistant Attorney General for Legislative Affairs Daniel J. Bryant to Congressman Anthony D. Weiner supports his claim for access to classified materials. Defendant Pollard maintains that "the government now admits that it does not maintain even the most basic standard of control to monitor who is afforded access to four of the five classified documents further demonstrat[ing] that the government has no genuine concern for risk to national security insofar as access to those four documents is concerned." 1/15/03 Deft. Motion at 4. The government makes no such admission, and the November 20, 2002 letter by Mr. Bryant indicated no such thing.

Contrary to defendant's misrepresentation about the Court Security officer's control over classified materials in this case, the Court Security officer has carefully controlled and monitored classified materials in this case for more than 15 years. As an initial matter, it should be noted that it is the Court, through its Court Security officer, which has possession of the five classified item that are sought by defendant Pollard. The Court Security Officer, on behalf of the Court, has exercised exemplary and tight control over the subject documents. The documents are indexed and inventoried. The documents are maintained in a safe within a SCIF which is itself within a secure workspace. As noted in Mr. Bryant's 11/20/02 letter to the Congressman, there is no log with respect to access to four of the five classified items. This is so because no one has sought or obtained access to those documents from the Court Security Officer. In other words, there is no log because there has been no access.

In Paragraph 17 of the Court's October 1986 Protective Order, the Court directed that the Court Security Officer was to maintain a log when classified materials filed with the Court were reviewed. In accordance with that Protective Order, the Court Security Officer has maintained a log of access to the fifth classified document - the declaration of former Defense Secretary Caspar Weinberger. Thus, contrary to defendant Pollard's baseless assertion that the Court Security Officer has failed to control or monitor access to the classified materials, the Court Security Officer has followed the Court's Protective Order in this matter and has exercised strict security and control over the classified items filed in this long closed criminal prosecution.

In his "supplemental reply memorandum" of December 2002, defendant Pollard argues that the decision in Stillman v. Department of Defense, 209 F. Supp.2d 185 (D.D. C. 2002), appeal pending, No. 02-5234, is somehow contrary to the three prior decisions in this case by Chief Judge Robinson and Chief Judge Holloway Johnson. Without any support or explanation, defendant contends in his December 2002 supplemental reply memorandum that "[u]nder Stillman the Government's position must be evaluated in the context of the access afforded by the Government to its own personnel."" 12/5/02 Deft. Supp. Reply Memo at 2.

The Stillman case opinion in no way establishes such a standard for this case or any other criminal prosecution operating under CIPA and a Protective Order. More fundamentally, the Stillman case involved consideration by Judge Sullivan of a pre-publication restriction or review upon the First Amendment speech of a former government employee. In that context and in the context of applying a First Amendment balancing test to judge the constitutionality of the government's prior restraint on the former employee's public speech, Judge Sullivan noted that "the government bears the burden of demonstrating the constitutionality of its actions." Stillman, supra, 209 F.Supp.2d at 221.

The burden in this long closed criminal case is just the opposite: the burden is on defendant Pollard to demonstrate a "need to know" sufficient to warrant access to the classified materials in this case. In other words, regardless whether his new lawyers have sufficient security clearances, defendant Pollard must demonstrate that their viewing of the classified portions of the documents are "essential to the accomplishment of lawful and authorized Government purposes." Executive Order Number 12356, (?) 4.1(a). Defendant Pollard has offered no compelling reason for breaching the secrecy of the classified materials in this case now or over the past 12 years.

In September 1990, defendant's asserted need for new counsel to review the classified materials was insufficient where access was sought to assist in defendant's motion to withdraw his guilty plea based on the government's alleged breach of the plea agreement. See United States v. Pollard, 747 F. Supp. 797, 806-07 (D.D.C. 1990), aff'd, 959 F.2d 1011 (D.C. Cir.),crt. denied, 506 U.S. 915 (1992). In January 2001, defendant's asserted need for new counsel to review the classified materials was again insufficient where he sought access to assist in an active petition or effort to obtain executive clemency. See 1/12/01 Order. Now, when there is no pending motion to withdraw a guilty plea or petition for executive clemency, defendant's asserted need to access to the classified materials is even less. Accordingly, defendant Pollard's request for a status conference and an evidentiary hearing to consider this matter further are without merit and should be denied.

CONCLUSION

WHEREFORE, the government respectfully submits that both defendant's January 15, 2003 Motion for a Status Conference and defendant's August 16, 2001 Second Motion to Reconsider the Court's prior rulings and orders denying access to classified materials should be denied.

Respectfully submitted,
ROSCOE C. HOWARD, JR.
UNITED STATES ATTORNEY
D.C. BAR No. 246470

BY: (Signed) ________________________
Steven W. Pelak
Assistant united States Attorney
Transnational/Major Crimes Section
D.C. Bar No. 408744
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-6946

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that copies of the foregoing Opposition were served by facsimile, (212) 697-1559, and mail, postage prepaid, to counsel for Jonathan Pollard: Eliot Lauer and Jacques Semmelman, 101 Park Avenue, New York, New York 10178-0061, this 4th day of February 2003.

(signed)
__________________________
Steven W. Pelak
Assistant United States Attorney