Legal Doc: Reply to Govt.'s Oppositions to Motion for Status Conference

The government's extraordinary efforts to avoid a status conference, where it might be called upon to explain how it came to make a material misrepresentation to Judge Johnson, is exceeded only by its indefensible stonewalling on the issue of access by security-cleared counsel to the sealed docket materials.

As demonstrated by defendant's several submissions in support of his Motion for Modification(1), the Macisso and Bryant Letters establish that there is no legitimate basis for denying counsel access to the sealed docket materials. On the strength of those submissions, the Motion for Modification should be granted.

(1) Short form references defined in Defendant's Motion for Status Conference, filed January 16, 2003, are incorporated herein by reference.

Having obtained the Macisso and Bryant Letters through the efforts of Congressman Anthony Weiner, defendant has asked for a status conference in order to address concerns going beyond the merits of the Motion for Modification.

Yet in its Opposition served February 4, 2003 ("Gov't Feb. 4 Opp'n"), the government goes far beyond addressing the need for a status conference. In a seven-page opposition to the Motion for Status Conference, the government only repeats already discredited arguments against the Motion for Modification. Nothing in the government's Opposition, however, diminishes this Court's compelling interest in convening a status conference.

Indeed, the government's Opposition only underscores the need for a status conference because it perpetuates the government's continuing tactic of obfuscation with regard to its behavior before Judge Johnson. The government's behavior mandates a personal appearance before the Court to address some very troubling issues.

The government has never explained the circumstances under which it came to represent to Judge Johnson, falsely, that counsel were not entitled to see the sealed docket materials because they lacked the appropriate security clearances. The government persists in ignoring this disturbing matter. Indeed, in its Opposition, the government points to Judge Johnson's January 12, 2001 Order as dispositive (Gov't Feb. 4 Opp'n at pp. 2-4, 5, 6), without addressing the fundamental point that underlies the Motion for Modification: that Judge Johnson's Order was issued on the basis of a government misrepresentation, as established by the Macisso Letter.

This Court is entitled to know the circumstances under which the government came to misrepresent the issue of counsels' security clearance to Judge Johnson. This Court is entitled to find out if the government's misrepresentation was inadvertent, reckless or deliberate. And, assuming the Assistant U.S. Attorney who argued before the Court merely repeated what others in the government had told him, the Court is entitled to find out who provided him with false information. In sum, the Court is entitled to know how the government's inflammatory and false representations to Judge Johnson concerning counsels' allegedly deficient security clearance came to be made when, in truth, counsels' security clearance was not at all at issue.

In addition, the government's Opposition accuses defendant of misrepresenting the plain statements contained in the Second Bryant Letter. Defendant made no such misrepresentation.

Mr. Bryant, in clarifying his earlier written admission to Congressman Weiner that there have been at least 25 instances of access to the sealed docket materials, stated unambiguously and without qualification in the Second Bryant Letter that, although an access log has been maintained with respect to the Weinberger Declaration, "No log has been maintained with respect to access to the other [four] documents in the custody of this Department." (Motion for Status Conference, Ex. A) (emphasis added).

The government now claims in its Opposition that "there is no log with respect to access to four of the five classified items . . . because no one has sought or obtained access to those documents from the Court Security Officer." (Gov't Feb. 4 Opp'n at pp. 4-5)

But Mr. Bryant's statement that "[n]o log has been maintained" is very different. If the government now wants to backtrack from Mr. Bryant's statement, that too can be taken up at the status conference.

This Court is also entitled to have counsel for defendant, Mr. Lauer and Mr. Semmelman, appear before it, in order to personally and directly assure the Court, as counsel have already done in writing, that they will fully abide by all requirements imposed by the Protective Order.

Finally, with respect to the Government's Opposition served February 3, 2003 ("Gov't Feb. 3 Opp'n"), concerning the Motion for Status Conference on defendant's pending Motion for Reconsideration of the § 2255 Dismissal, defendant agrees with the government's statement that the issues on the Motion for Reconsideration "have been fully briefed by both parties and are currently ripe for a decision." (Gov't Feb. 3 Opp'n at p. 1) That notwithstanding, the issues presented by the Motion for Reconsideration are numerous and complex, both substantively and procedurally, and optimally should be addressed at a status conference with counsel present to address any of the Court's questions or concerns.

Conclusion

Defendant respectfully requests that a status conference be scheduled in this case.

Dated: February 10, 2003

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

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

____________________________
Jacques Semmelman (Admitted pro hac vice)

101 Park Avenue
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Attorneys for Jonathan Jay Pollard

DORA STRAUS certifies as follows under penalty of perjury:

On February 10, 2003, I caused to be served by Federal Express, priority overnight delivery, a true copy of the foregoing Defendant's Reply to Government's Oppositions to Defendant's Motion for Status Conference, on

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

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

_____________________________________
Dora Straus

Click links to see:

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

See Also:

• The Court Case Page
• Legal Doc: Defendant's Motion for Status Conference
• Legal Doc: Court Denies Motion for Status Conference