Legal Doc: ACLU Amicus Brief For Pollard Case in U.S. Court of Appeals

G. Brian Busey (D.C. Bar No. 366760)
Alexandra Steinberg Barrage
(D.C. Bar No. 484148)
Brett A. Walter (D.C. Bar No. 473793)
MORRISON & FOERSTER LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1888
(202)887-1500

Arthur B. Spitzer (D.C. Bar No. 235960)
AMERICAN CIVIL LIBERTIES UNION
OF THE NATIONAL CAPITAL AREA
1400 20th Street, N.W. #119
Washington, D.C. 20036
(202) 457-0800

Robert L. Weinberg (D.C. Bar No. 020321)
Stephen R. Greenwald
Robert K. Erlanger
THE AMERICAN ASSOCIATION OF
JEWISH LAWYERS AND JURISTS
2020 K Street, N.W., 7th floor
Washington, D.C. 20006
(202) 775-0991

Counsel for Amici Curiae

September 29, 2004

CERTIFICATE AS TO PARTIES, RULING AND RELATED CASES

1. PARTIES AND AMICI

Appellant:

Appellee:

Amici:

RULINGS UNDER REVIEW

Judgment of the U.S. District Court (Johnson, J.) dated August 7, 2001 and entered August 9, 2001, which dismissed Pollard's Motion for Resentencing under 28 U.S.C. §2255. United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001). (A-614)

Memorandum Order of the U.S. District Court (Johnson, J.) dated January 12, 2001 and entered January 30, 2001, which denied Pollard's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. (Not reported.) (A-440)

Order of the U.S. District Court (Johnson, J.) dated August 7, 2001 and entered August 9, 2001, which denied Pollard's Motion for Reconsideration of the January 12, 2001 Memorandum Order. (Not reported.) (A-635)

Order of the U.S. District Court (Hogan, J.), dated November 12, 2003 and entered November 24, 2003, which denied Pollard's Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter. United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003). (A-866)

RELATED CASES

The case on review was previously before the United States District Court for the District of Columbia. United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003). Counsel for amici are not aware of any related cases currently pending in this court or in any other court. A related case, which is no longer pending in this court or in any other court, is United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990), aff'd, 959 F.2d 1011 (D.C. Cir. 1992), cert denied, 506 U.S. 915 (1992).

Amicus American Civil Liberties Union of the National Capital Area hereby states that it is a non-profit membership corporation devoted to the defense of constitutional rights and individual liberties, that it has not issued shares or debt securities to the public, that it has no parent, subsidiary, or affiliated entities that have issued shares or debt securities to the public, and that no publicly-held company has any ownership interest in it.

Amicus National Association of Criminal Defense Lawyers hereby states that it is a non-profit membership corporation devoted to advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct, that it has not issued shares or debt securities to the public, that it has no parent, subsidiary, or affiliated entities that have issued shares or debt securities to the public, and that no publicly-held company has any ownership interest in it.

Amicus American Association of Jewish Lawyers and Jurists hereby states that it is a nonprofit organization that represents the American Jewish legal community, defending Jewish interests and human rights in the United States and abroad, that it is the United States affiliate of the International Association of Jewish Lawyers and Jurists, that it has not issued shares or debt securities to the public, that it has no parent, subsidiary, or affiliated entities that have issued shares or debt securities to the public, and that no publicly-held company has any ownership interest in it or in the International Association of Jewish Lawyers and Jurists.

(signed)
G. Brian Busey
Morrison & Foerster LLP
2000 Pennsylvania Ave., NW
Suite 5500 Washington, DC 20006

Counsel for Amici Curiae

Page (N.B. - Page numbers are those in original legal document.)

CERTIFICATE AS TO PARTIES, RULING AND RELATED CASES .....i

STATEMENTS REQUIRED BY RULE 26.1.....iii

TABLE OF AUTHORITIES.....vii

INTEREST OF AMICI CURIAE.....1

STATEMENT.....4

1. Background.....4
2. The Access Motion.....6
3. Relevant Facts Come to Light.....8
4. The Access Motion is Again Denied.....10

ARGUMENT.....11

1. MR. POLLARD'S SUCCESSOR COUNSEL ARE ENTITLED TO ACCESS BECAUSE COUNSEL COMPLIED WITH THE PROTECTIVE ORDER, HAVE THE REQUIRED LEVEL OF SECURITY CLEARANCE, AND HAVE A NEED TO KNOW THE CLASSIFIED INFORMATION.....11
   1. Mr. Pollard's Counsel Complied with the Protective Order, Which Plainly Contemplates that Additional Qualified Persons Will Have Access to the Sealed Materials.....11
   2. Mr. Pollard's Counsel Have the Required Security Clearance.....13
   3. Mr. Pollard's Successor Counsel Have A Need To Know Whatis in the Pre-Sentencing Materials.....13
      1. The Standard for Need-to-Know is Plainly Worded.....13
      2. The District Court's Basis for Finding No Need-to-Know Was Improper.....14
      3. Mr. Pollard's Successor Counsel Have Sufficiently Satisfied the Need-To-Know Standard.....16

2. PERMITTING ACCESS BY PROPERLY CLEARED COUNSEL WILL NOT ENDANGER NATIONAL SECURITY.....21

3. DENYING COUNSEL ACCESS TO THE PRE-SENTENCING MATERIALS VIOLATES FUNDAMENTAL PRINCIPLES OF FAIRNESS.....23

CONCLUSION.....26

(N.B. - Page numbers are those in original legal document.)

Biddle v. Perovich, 274 U.S. 480 (1927).....16

Cummockv. Gore, 180 F.3d 282 (D.C. Cir. 1999).....19

Exparte Garland, 71 U.S. 333 (1867).....17

Exparte Grossman, 267 U.S. 87 (1925).....16

Herrera v. Collins, 506 U.S. 390 (1992).....16

Jacobs v. Schiffer, 204 F.3d 259 (D.C. Cir. 2000).....12

Molerio v. F.B.I. , 749 F.2d 815 (D.C. Cir. 1984).....1

Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975).....16

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).....24

Snepp v. United States, Stillman v. DOD, 209 F. Supp. 2d 185 (D.D.C. 2002),

   rev'd on other grounds, 319 F.3d 546 (D.C. Cir. 2003).....13-14, 15, 18

United States v. Lewis, 743 F.2d 1127 (5th Cir. 1984).....21

United States v. Moussaoui, No. 03-4792, 2004 WL 2029733 (4th Cir. Sept. 13, 2004).....23

United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003).....11, 14

United States v. Pollard, 147 F. Supp. 797 (D.D.C. 1990), aff'd, 959 F.2d 1011 (D.C. Cir. 1992).....21

United States v. Pollard, 959F.2d 1011 (D.C. Cir. 1992).....18

United States v. Rezaq, 899 F. Supp. 697 (D.D.C. 1995).....22

United States v. Wilson, 32 U.S. 150 (1833).....16

Webster v. Doe, 486 U.S. 592 (1988).....1

18 U.S.C. § 794(c).....4

60 Fed. Reg. 19,825 (Apr. 17, 1995).....13,19, 22

Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. §§ 1-16.....23

U.S. Const, amend. VI.....24

Director of Central Intelligence Directive No. 6/4,
Personnel Security Standards and Procedures Governing
Eligibility for Access to Sensitive Compartmented Information (1998).....8

The Federalist No. 23 (Alexander Hamilton).....24

Proclamation No. 6518 (December 24, 1992).....17

Margaret Colgate Love, Of Pardons, Politics and Collar Buttons:
Reflections on the President's Duty to be Merciful,
27 Fordham Urb. L.J. 1483,1485-86(2000).....24

Meeting the Espionage Challenge: A Review of US Counterintelligence and
Security Programs - Report of the Select. Comm. on Intelligence,
S. Rep. 99-522, 99th Cong. 2d Sess. 71 (1986).....22

Report of the Commission on Protecting and Reducing Government Secrecy,
S. Doc. 105-2, 103rd Cong. (1997).....21

Transcript of Argument, Rumsfeld v. Padilla, No. 03-1027
(Supreme Court April 28, 2004).....22

The American Civil Liberties Union of the National Capital Area is the local affiliate of the American Civil Liberties Union ("ACLU"), a nationwide, non-profit, nonpartisan membership organization that since 1920 has been dedicated to protecting the principles embodied in the Bill of Rights. The ACLU has a long history of defending the right of litigants to have the effective assistance of counsel and opposing excessive and untenable claims of national security.

The ACLU itself often represents clients in cases involving national security issues, see, e.g., Webster v. Doe, 486 U.S. 592 (1988); Snepp v. United States, AAA U.S. 507 (1980); Molerio v. F.B.I. , 749 F.2d 815 (D.C. Cir. 1984), and thus has a strong interest in ensuring that an attorney's ability to represent his client is not unnecessarily compromised in the name of "national security" where adequate safeguards exist to protect legitimate governmental interests.

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's more than 11,000 direct members - and 82 state, local, and international affiliate organizations with another 28,000 members - include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system. As an organization of criminal defense attorneys, many of whom regularly practice in the federal courts, NACDL brings to this Court an important perspective on the obligations of defense counsel, the prosecution, and the courts in federal post-conviction proceedings.

The American Association of Jewish Lawyers and Jurists (AAJLJ) is a professional, non-profit, nonpartisan, membership organization, drawn from the bar, the bench, and academia, that represents the American Jewish legal community in seeking to defend Jewish interests and human rights in the United States and abroad. It is affiliated with the International Association of Jewish Lawyers and Jurists, which was founded in 1969 by United States Supreme Court Justice Arthur Goldberg and Israel Supreme Court Justice Haim Cohn.

The AAJLJ is involved with issues that arise in protecting the needs of national security while preserving the civil liberties of the individual. The AAJLJ has been concerned with the issue of whether the life sentence imposed upon Jonathan Pollard after his plea of guilty, following the plea bargain in his case, was unduly severe and warrants commutation. The life sentence was apparently imposed, in the AAJAL's view, as the result of the government's submission of the declaration of Caspar Weinberger, access to which is sought by Mr. Pollard's successor counsel in this case. As amicus, the AAJLJ supports successor counsel's right to review this declaration, so that they may have the opportunity, if so advised, to respond to the allegations of the declaration in the context of a clemency application to the President.

The additional amici are fourteen law professors and other distinguished individuals from around the country who have an interest in the fair administration of justice, the principled interpretation of law, and the protection of rights guaranteed by the Constitution.¹ This group is representative of a larger number of academics and practitioners concerned with the manner in which the government has treated the defendant here.

1. The individual amici are:
Robert Abrams, Former Attorney General, State of New York;
Anthony D'Amato, Professor of Law, Northwestern University;
Robert Drinan, Professor of Law, Georgetown University;
Monroe Freedman, Professor of Law, Hofstra University;
Howard Glickstein, Dean and Professor of Law, Touro College;
Malvina Halberstam, Professor of Law, Benjamin N. Cardozo School of Law;
Theodore Hesburgh, Past President, Notre Dame University;
Laurence Katz, Professor of Law and Dean Emeritus, University of Baltimore;
Robert Lande, Professor of Law, University of Baltimore;
Kenneth Lasson, Professor of Law, University of Baltimore;
George Leighton, Retired United States District Judge;
Charles Rice, Professor of Law, Notre Dame University;
Anthony D. Weiner, Member of Congress; and
Stephen Wizner, Professor of Law, Yale University.

In this case, the government seeks to deny security-cleared defense counsel access to materials in the defendant's court file that the government continues to

use to maintain the defendant's ongoing incarceration. Despite the government's repeated access to these classified documents, the government nevertheless maintains that defense counsel - who, as the government concedes, has succeeded in meeting its own stringent security clearance requirements - does not have any "need-to-know" the classified information.

Thus, the government seeks to have it both ways, obtaining repeated access for its own personnel who have actively contested defendant's efforts to gain clemency, while denying defense counsel's efforts to submit a thorough and accurate petition on his behalf. For these reasons, this case raises serious questions about the government's power to control successor counsel's access to the information in his own client's case file.

1. Background

   For the past eighteen years, Jonathan Pollard has been serving a life sentence in federal prison. Mr. Pollard did not have a trial, but pled guilty to one count of conspiracy to commit espionage in violation of 18 U.S.C. § 794(c). During the pre-sentencing process, the government and the defense submitted four partially-classified documents. Those classified documents were: (i) a Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Declaration") (A-450); (ii) a memorandum personally prepared by Mr. Pollard (A-471); (iii) a memorandum prepared by Mr. Pollard's defense counsel, Richard Hibey (A-535); and (iv) the government's reply memorandum (A-584) (collectively, the "Pre-Sentencing Materials").

   In connection with the use of these materials, the district court (Robinson, J.) signed a protective order on October 24, 1986 (the "Protective Order"). That Protective Order specifically contemplated that persons assisting the defense, other than Mr. Pollard's then-defense counsel, could have access to the Pre-Sentencing Materials by providing a detailed procedure in connection therewith:

   7. This Order shall apply to the defendant

   and defense counsel

   and any other person who may require or receive access to classified national security information or documents in connection with this case and who has been granted the appropriate security clearances.

   10. All other individuals other than defendant, above-named defense counsel, government counsel, appropriately cleared [DOJ] employees, and personnel of the originating agency, can obtain access to classified information and documents only after having been granted the appropriate security clearances by the [DOJ] through the Court Security Officer and the permission of this Court.

   12. Further, before any person, other than government counsel, appropriately cleared [DOJ] employees and personnel of the originating agency, is permitted by the Court to inspect and review classified national security information or documents, he or she must also sign a sworn statement...

   13. For the purpose of establishing security clearance necessary for access to classified information and documents that may relate to this case, [a Standard Form is required to be completed and submitted to the Court Security Officer]

   by all persons whose assistance the defense reasonably requires ...

   14. All requests for clearance for access to classified information and documents in this case by persons not named in this Order shall be made to the Court Security Officer . . . Any such requests for disclosure to a person not named in this Order will require the approval of the Court and will be made by way of Motion.

   (A-72-73) (emphasis added).

   The Access Motion

   In May 2000, Mr. Pollard retained new counsel (one of whom is Mr. Lauer) to represent him in, inter alia, seeking executive clemency from the President pursuant to Article II, section 2, of the Constitution. (A-296) Soon after his retention, Mr. Lauer submitted his application for security clearance, specifically informing the DOJ that he sought access to the classified portions of the Pre-Sentencing Materials. (A-356) After a thorough background investigation, Mr. Lauer was granted Top Secret clearance on November 2, 2000. (A-296) Even with this clearance, however, the government refused to grant him access to the Pre-Sentencing Materials. (A-354) That same month, Mr. Pollard filed a motion (the "Access Motion") seeking to add his new counsel (Mr. Lauer) to the list of persons authorized to access the Pre-Sentencing Materials, so that his new counsel could represent him effectively. (A-289) Consistent with the terms of the 1986 Protective Order, defendant's new counsel sought to view the Pre-Sentencing Materials in a secure government facility, under government supervision, and with the sole objective of "responding] to arguments by those who oppose executive [clemency] relief on the basis of what is set forth in the sealed materials." (A-296)

   The government opposed the Access Motion on the grounds that Mr. Lauer's "Top Secret" security clearance was "insufficient" because the Weinberger Declaration contained "Sensitive Compartmented Information" ("SCI") (A-333 n.9), and that counsel had no "need to know" what was in the Pre-Sentencing Materials. The government maintained that the information contained in those materials was irrelevant to the clemency issue because clemency is not an "adversarial process," and the "mere possibility that those opposing executive relief may cite the sealed materials" was insufficient to demonstrate a "need to know." (A-331,334)

   In January 2001, the district court (Johnson, CJ.) denied the Access Motion on the grounds that public disclosure of the Pre-Sentencing Materials "would pose a grave risk to national security," and that successor counsel had "no need-to-know" the contents of the materials because (i) the President could look at the materials for himself if he wanted to know what was in them, (ii) there was no evidence that the President had specifically inquired about the contents of these documents, and (iii) the President could consult the memorandum that had been prepared by Mr. Hibey in 1987. (A-442-43)

   Relevant Facts Come to Light

   Because of the government's assertion that defense counsel's Top Secret clearances were insufficient, defense counsel wrote to the Court Security Officers, requesting that they take appropriate steps to grant defense counsel whatever clearance was required to allow access to the Pre-Sentencing Materials. By letter dated August 3, 2001, Court Security Officer Michael P. Macisso responded (the "Macisso Letter") and conceded that defense counsel's "

   background investigations will support SCI access

   ." (A-650) (emphasis added). Mr. Macisso added that there are other criteria which must be met for access to particular materials, including an SCI indoctrination briefing and a "need to know" determination from the Court or the government." (A-650)

   The Director of Central Intelligence may protect "Top Secret," "Secret" or even "Confidential" information as SCI if the information concerns intelligence sources, methods or analytical processes. See Director of Central Intelligence Directive No. 6/4, Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information (1998) at § l.h.² Access may be granted to SCI if the prospective recipient clears a background check, has a need to know and signs a nondisclosure agreement. Id. at §§ 4-5 and 7. As the Macisso Letter acknowledged, defense counsel's background investigation "supported" SCI access, leaving the need to know and the nondisclosure form as the only remaining requirements to access the Pre-Sentencing Materials. Defense counsel's level of security clearance simply is not an issue.

   2. See http://www.fas.org/irp/offdocs/dcid6-4/dcid6-4.pdf. pp. 3-4.

   In another telling admission, approximately one month after the Macisso Letter, Assistant Attorney General Daniel J. Bryant stated in a letter (the "Bryant Letter") that there had been two dozen instances of access to the Pre-Sentencing Materials between November 19, 1993 and January 12, 2001. (A-754) On November 10, 1993, President Clinton publicly stated that he had asked the DOJ to review the Pollard case for a possible grant of clemency. (A-766) It is hardly coincidental that the Pre-Sentencing Materials were repeatedly accessed by the government between that date and the end of the Clinton Administration - precisely the period during which Mr. Pollard's attorneys were trying to make the case for clemency, and precisely the period during which the government was refusing to allow them to see the sealed portions of their own client's file.

   The Bryant Letter demonstrates that the government concluded that, in connection with Mr. Pollard's clemency petition, certain government personnel had a "need to know" the contents of the Pre-Sentencing Materials. It is only fair to infer - in the absence of any contrary evidence from those who know - that government officials relied upon the contents of those Materials in opposing clemency for Mr. Pollard. It stands to reason, therefore, that if Executive Branch officials oppose Mr. Pollard's next clemency petition, they again will rely upon these materials.

   The Access Motion is Again Denied

   With the Macisso and Bryant Letters in hand, Mr. Pollard filed a motion for modification of the court's earlier order denying his counsel access to the Pre-Sentencing Materials. Successor counsel again explained that they needed access to the Pre-Sentencing Materials in connection with applications for executive clemency and related initiatives. (A-636) Nevertheless, the district court (Hogan, C.J.) found that counsel did not present any "new justification" on the "need-to-know" standard, and that they were not entitled to access the Pre-Sentencing Materials because Mr. Pollard presented "no credible evidence that the current President is any more willing to grant him clemency than the previous three Presidents who declined to do so." The court added:

   When the complete absence of any such evidence is considered in light of the current security threats faced by our nation since September 11, 2001, the Court finds it even less likely than before that Mr. Pollard's attorneys will require access to classified documents in support of a speculative possibility of executive clemency. "[Classified information is not discoverable on a mere showing of theoretical relevance in the face of the government's classified information privilege ...."

   United States v. Pollard, 290 F. Supp. 2d 165, 166 (D.D.C. 2003) (citations omitted).

   These appeals followed.

ARGUMENT

1. MR. POLLARD'S SUCCESSOR COUNSEL ARE ENTITLED TO ACCESS BECAUSE COUNSEL COMPLIED WITH THE PROTECTIVE ORDER, HAVE THE REQUIRED LEVEL OF SECURITY CLEARANCE, AND HAVE A NEED TO KNOW THE CLASSIFIED INFORMATION.
   1. Mr. Pollard's Counsel Complied with the Protective Order, Which Plainly Contemplates that Additional Qualified Persons Will Have Access to the Sealed Materials.

Access to the Pre-Sentencing Materials contained in the Court's file is governed by the Protective Order. (A-72) The Protective Order provides that certain named individuals - including Mr. Pollard's then-defense attorney, Mr. Hibey - will have access to the Pre-Sentencing Materials. (A-72) The Protective Order also provides a detailed procedure by which "other individuals," other than government officials, may obtain authorization to access the classified material. (A-73) There is no reason to believe that successor counsel were not among the "all persons whose assistance the defense reasonably requires " that the Protective Order specifically contemplates may receive future access to the Pre-Sentencing Materials.

The Protective Order does not require government consent as a condition of access. Mr. Pollard's successor counsel has complied with the carefully-drafted and comprehensive requirements for access set out in the Protective Order, to which the government agreed when the Protective Order was entered. Therefore, assuming this Court finds that the "need to know" standard is met, Mr. Pollard's new, Top Secret security-cleared counsel should be given access to the sealed portions of their client's file, just as successor government personnel charged with implementing the DOJ's ongoing opposition to clemency for Pollard would have - and have had -access. Cf. Jacobs v. Schiffer, 204 F.3d 259, 265-66 (D.C. Cir. 2000) (holding that government cannot impose an "absolute embargo" on nonpublic information that government employee seeks to share with his attorney, and explaining that attorney's willingness to enter into protective order and to otherwise keep the information in confidence is a relevant factor in determining whether to grant access).

Mr. Pollard's Counsel Have the Required Security Clearance.

Notwithstanding the government's earlier assertions, it is now clear that Mr. Pollard's counsel have obtained the required level of security clearance. As the Macisso Letter makes clear, Lauer and Semmelman's "background investigations will support

SCI

Mr. Pollard's Successor Counsel Have A Need To Know What is in the Pre-Sentencing Materials.

1. The Standard for Need-to-Know is Plainly Worded.

The relevant standard for a "need-to-know" is plainly worded and distinctly uncomplicated. 60 Fed. Reg. 19,825 at § 4.1(c) (Apr. 17, 1995). Defined in Executive Order 12958, it is merely a determination that a "prospective recipient" of classified information "requires access ... in order to perform or assist in a lawful and authorized governmental function." Id. That is all. Nothing in the Executive Order mandates that only an executive branch or other governmental employee can qualify as a "prospective recipient." Stillman v. Dep't of Def, 209 F. Supp. 2d 185, 189 (D.D.C. 2002) (government acknowledged that in earlier case private counsel had need-to-know in order to represent his client effectively in prepublication review process), rev 'd on other grounds, 319 F.3d 546 (D.C. Cir. 2003). The need-to-know standard does not limit the nature of the basis of a person's need to know, except to specify that it must be to perform or assist in a "lawful and authorized governmental function." Id. at 191. Finally, the rule does not hinge the need-to-know determination on the likelihood that the result of the "authorized governmental function" might turn out in the prospective recipient's (or his client's) favor.

The District Court's Basis for Finding No Need-to-Know Was Improper.

Despite this simple, common sense standard, however, the district court held that Mr. Pollard's successor counsel had no need to know the contents of the Pre-Sentencing Materials. United States v. Pollard, 290 F. Supp. 2d at 166. But the court's decision was based upon legally irrelevant considerations: the terrorist attacks of September 11, 2001, and the court's prediction that President Bush was not likely to grant Mr. Pollard clemency. Id.

The district court did not explain how either of these factors related to the plainly worded requirements of Executive Order 12958 or of the Protective Order - because they do not relate. Neither Mr. Pollard's chances of being granted clemency by the incumbent President, nor our country's "war on terrorism" following September 11, have any legal bearing on the question of whether successor counsel has a need to know the contents of the Pre-Sentencing Materials in order to represent their client in this case. See Stillman, 209 F. Supp. 2d at 196-97 (noting that Executive Order 12968 does not predicate the need-to-know on the level of national security risk).

Regarding the likelihood of clemency being granted by President Bush, the district court was surely in no position to know what sorts of diplomatic and political considerations affecting Mr. Pollard might come into play at the White House at some point in the future.³ Even assuming that the district court may have guessed right about the current incumbent, it is not likely that the current incumbent will be in the White House for the duration of Mr. Pollard's life sentence, as Mr. Pollard is only fifty years old. Surely it cannot be the law that a lawyer's right to see his client's court file depends upon the result of the next election. The basis of the district court's decision was also improper because it was a self-fulfilling prophecy: perhaps the current President will be no more likely than past presidents to grant clemency because Mr. Pollard's counsel have been prevented from making an effective argument for clemency by the district court's denial of access to these materials.

3. For example, the Israeli government has previously lobbied the President to grant Pollard clemency. (A-766, 769)

The district court was also wrong to rely on "September 11" as a ground for denial of access by properly-cleared counsel. Any information in the Pre-Sentencing Materials is nearly twenty years old. The government has not even claimed that anything in these materials relates to "September 11" or the current "war on terrorism." Nor has Executive Order 12958's definition of "need-to-know" been amended because of the attacks on the World Trade Center and the Pentagon. It was not the district court's job to amend it. A lawyer has no lesser need to see his client's court file in 2004 than he did in 2000.

Mr. Pollard's Successor Counsel Have Sufficiently Satisfied the Need-To-Know Standard.

Mr. Pollard has repeatedly made the required showing that his counsel have a need to know the contents of the Pre-Sentencing Materials in order to assist him with an accurate and effective clemency petition. (See, e.g., A-442) The clemency process is unarguably a "lawful and authorized governmental function." See Biddle v. Perovich, 274 U.S. 480, 486 (1927) (Presidential pardon is "part of the Constitutional scheme"); Ex parte Grossman, 267 U.S. 87, 120 (1925) ("[e]xecutive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law"); Herrera v. Collins, 506 U.S. 390, 413 (1992) (clemency is "an act of grace, proceeding from the power entrusted with the execution Of the laws .... It is the private, though official act of the executive magistrate .. ..") (quoting United States v. Wilson, 32 U.S. 150, 160 (1833)); Murphy v. Ford, 390 F. Supp. 1372, 1374 (W.D. Mich. 1975) (clemency power "extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.. ..") (quoting Ex parte Garland, 71 U.S. 333, 380 (1867)).⁴

4. Ironically, Caspar Weinberger was himself later the recipient of a presidential pardon issued during the pendency of criminal proceedings against him for his role in the Iran-Contra affair. See Proclamation No. 6518 (December 24, 1992).

Mr. Pollard's counsel requires access to the Pre-Sentencing Materials in order to assist with the clemency petition. An effective clemency petition requires that counsel have the ability to communicate with a full and accurate understanding of the information that was used to sentence Mr. Pollard to life in prison and that is used to keep him there. (A-346) Further, it requires the capability to communicate to the President, the President's advisors, and other key governmental figures with complete knowledge of the record, in particular to rebut challenges to the clemency petition made by the government in the media and elsewhere. (A-306) Naturally, therefore, Mr. Pollard's lawyers require access to the core documents that led the district judge to impose a life sentence. This is especially true where the government has repeatedly determined that its own personnel have a need to know what is in those documents.

It has been argued, including by a judge of this Court, that "the government's breach of the plea agreement [in this case] was a fundamental miscarriage of justice." United States v. Pollard, 959 F.2d 1011, 1032 (D.C. Cir. 1992) (Williams, J., dissenting). While amici take no position on that question or on the merits of appellant's § 2255 motion, no one could deny that demonstrating to the Chief Executive that one's client has suffered a "fundamental miscarriage of justice" would be an important step toward obtaining executive clemency. And no one can deny that without access to the Pre-Sentencing Materials, Mr. Pollard's counsel cannot even know the real strength (or the real weakness) of their ability to make that case.

The government's efforts to show that counsel have no need to know are unpersuasive. The government argued that Mr. Pollard's counsel do not need access to the contents of the Pre-Sentencing Materials because clemency is not an adversarial proceeding. (A-334) But the need-to-know analysis plainly does not restrict the "lawful governmental function" only to an adversarial proceeding. Indeed, in Stillman, the government made precisely the opposite argument: that the plaintiffs counsel had no need to know the contents of his own client's manuscript because he was negotiating against the government in an adversarial manner and thus not "assisting" in a government function. See Stillman, 209 F. Supp. 2d at 191-93. Apparently the government's position is that when it comes to those who are not government employees, neither adversaries nor non-adversaries can have a "need to know" classified information; everyone simply has to trust the Executive Branch to do the right thing behind closed doors.⁵ But the need-to-know standard contains no limitations on the appropriate characteristics of a "governmental function" except that it be lawful. 60 Fed. Reg. 19,825 at § 4.1(c). Indeed, the vast majority of people who have a need to know Top Secret materials are government employees or contractors who are not involved in an adversarial proceeding of any kind. See, e.g., Cummockv. Gore, 180F.3d282, 292-93 (D.C. Cir. 1999) (reversing denial of an advisory committee member's access to classified information that she required in order to fully participate in committee deliberations). Id.

5. "Trust the Executive," however, is not always a reliable prescription for seeing that justice is done. Compare the recent dialogue during Supreme Court oral argument when Justice Ginsburg raised the issue of whether the U.S. government might engage in torture of accused terrorists if those detainees did not have access to the courts:

JUSTICE GINSBURG: Suppose the Executive says mild torture, we think will help get this information.... Some systems do that to get information.

MR. CLEMENT: Well, our Executive doesn't___

JUSTICE GINSBURG: What's constraining? That's the point. Is it just up to the good will of the Executive, or is there any Judicial check?

MR. CLEMENT: [Y]ou have to trust the Executive___ Transcript of argument in Rumsfeld v. Padilla, No. 03-1027 (2004), at 22-23, available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1027.pdf.

The government also contended that Mr. Pollard's counsel have no "need to know" because the President might not examine or rely on the Pre-Sentencing Materials in making a decision about clemency, or could access the materials himself if he was curious. (A-426-28) But Mr. Pollard's counsel's need to know does not depend upon whether a future President ultimately reads or relies upon these materials. The DOJ (and former DOJ officials) have actively challenged Mr. Pollard's clemency petitions, even making representations in the media that unquestionably relate to the contents of the Pre-Sentencing Materials.6 Mr. Pollard's counsel require a complete and accurate understanding of the record in order to present Mr. Pollard's clemency case effectively to the President and his aides. (A-290-306, 345) Most importantly, Mr. Pollard's counsel require this information so they can properly respond to the government's continued, open challenges to his attempt to obtain clemency.

The government's argument is also undercut by its own prior conduct. As disclosed by the Bryant Letter, the government accessed the Pre-Sentencing Materials 24 times between 1991 and 1993, at the very time Mr. Pollard was seeking clemency from President Clinton. (A-754, 766, 773) The government has not explained - because it cannot - why its agents have a need to know the contents of these materials in connection with Mr. Pollard's clemency applications but Mr. Pollard's counsel does not.

Mr. Pollard has therefore satisfied the "need to know" standard.⁷

7. This Court's 1992 sub silentio affirmance of the district court's 1990 decision denying Mr. Pollard's then-attorney, Hamilton Fox, access to the Weinberger Declaration in connection with presenting Mr. Pollard's first § 2255 motion to the sentencing judge is no bar to the present Access Motion. The district court's decision, and this Court's, were based largely on the fact that memories of sentencing were fresh and both Mr. Pollard and the sentencing judge knew very well what was in the Weinberger Declaration; Mr. Fox was also presumed to have access to Mr. Hibey and his memories. See United States v. Pollard, 141 F. Supp. 797, 807 (D.D.C. 1990), aff'd, 959 F.2d 1011,1018 (D.C. Cir. 1992). But Mr. Pollard's sentencing occurred nearly twenty years ago. The sentencing judge is deceased and Mr. Pollard can hardly be expected to recall and communicate accurately to his current counsel the details of documents he last saw in 1986. Nor do Mr. Pollard or his present counsel have access to Mr. Hibey's memories of documents he read almost twenty years ago. Moreover, the clemency forum is a different forum from the district court. The only legal authorities cited by the 1990 and 1992 access decisions were cases dealing with access to presentence reports in connection with motions to reduce sentence, e.g., United States v. Lewis, 743 F.2d 1127 (5th Cir. 1984). The only reasoning in those cases is that the defendant and his counsel already knew what was in the report. See id. at 1128-29. We have already explained why that reasoning is inapplicable to successor counsel here.

PERMITTING ACCESS BY PROPERLY CLEARED COUNSEL WILL NOT ENDANGER NATIONAL SECURITY.

No one disputes the need to safeguard properly classified materials. But national security does not require that access to classified materials be denied to everyone. In fact, more than three million people have security clearances⁸, because the government recognizes that the protection of secrets must be balanced against the need for people to use information in appropriate ways. This balance has been struck by the system of graduated security clearances and the "need to know" standard. That is not a standard imposed by the courts on the Executive, but the Executive's own standard. 60 Fed. Reg. 19,825. There is no reason to believe - and the government has offered none - that this standard will fail to work just as well with regard to Mr. Pollard's security-cleared counsel as it does with regard to government personnel.

8. See Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. 105-2, 103rd Cong. (1997) (popularly known as the "Moynihan Commission Report"), at Fig. 3.

As the Senate Select Committee on Intelligence has explained, security clearances "go to individuals whose records demonstrate a clear aptitude for security. That is, their background and personal qualities [show] a high sense of responsibility." Meeting the Espionage Challenge: A Review of US Counterintelligence and Security Programs - Report of the Select. Comm. on Intelligence, S. Rep. 99-522, 99th Cong. 2d Sess. 71 (1986). Protective orders which require parties seeking access to classified documents to submit to security clearance procedures have been deemed sufficient to prevent disclosure of classified information. See, e.g., United States v. Rezaq, 899 F. Supp. 697, 708 (D.D.C. 1995) (protective order which tracked the provisions of the Classified Information on Procedures Act was "more than adequate procedural protections against public disclosure of classified information").

Here, it is ironic that the government seems reluctant to follow its own carefully designed system for protecting sensitive information-including the background investigation, the Top Secret security clearance, the "need-to-know" criterion, the security briefings and the execution of appropriate security agreements. The government's reluctance is particularly revealing where it has provided the court only hypothetical reasons why the release of a few twenty-year-old documents to lawyers who have satisfied the system's requirements would threaten national security.

DENYING COUNSEL ACCESS TO THE PRE-SENTENCING MATERIALS VIOLATES FUNDAMENTAL PRINCIPLES OF FAIRNESS.

Courts have recognized that it would be unfair, and unconstitutional, for the government to bring criminal charges against an individual while withholding crucial evidence from the defense, even if that evidence involves national security secrets. See, e.g., United States v. Moussaoui, No. 03-4792, 2004 WL 2029733 at ?13-14 (4th Cir. Sept. 13, 2004).

It is for these reasons that the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. §§ 1-16, was adopted, and that Mr. Pollard's previous defense counsel was given access to the Pre-Sentencing Materials. And while neither CIPA nor the Sixth Amendment applies to Mr. Pollard's application for executive clemency, their policy is relevant. While the government is not now trying to put Mr. Pollard in prison, it is trying to keep him there; forcing him to proceed blindfolded and with one arm tied behind his back is unfair not only to him but to the constitutionally-created clemency process itself.⁹

9. Executive clemency has long been recognized as a way for the President to remedy harsh or incorrect judgments or to deal with national emergencies. Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to be Merciful, 27 Fordham Urb. LJ. 1483, 1485-86 (2000). Even before the ratification of the Constitution, it was recognized "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." THE FEDERALIST NO. 23 (Alexander Hamilton).

The Supreme Court has recognized that "some minimal procedural safeguards apply to clemency proceedings." Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998).¹⁰ Certainly one minimal and fundamental due process safeguard is the right to confront the evidence that is being used against one. See, e.g., U.S. CONST, amend. VI.

10. The quotation is from the concurring opinion of Justice O'Connor, which was joined by Justices Souter, Ginsburg and Breyer. Justice Stevens' dissenting opinion argued even more strongly that "clemency proceedings ... must comport with due process." Id. at 295 n.4. A clear majority of the Court thus rejected Chief Justice Rehnquist's argument (in the portion of his opinion that did not speak for the Court) that the Due Process Clause did not have a role to play in clemency proceedings.

Indeed, the proper operation of the clemency process depends not only on the role of government employees but also on an applicant's counsel's ability to develop and present all the relevant facts and to rebut any false, mistaken or exaggerated allegations of those who may oppose clemency. Imagine the outrage of the DOJ attorneys if they were blocked from access to portions of a case file containing the factual basis for arguments that a clemency applicant was making to the President. It is equally outrageous for a person seeking commutation of his life sentence to be blocked, for no justifiable reason, from the portions of his own case file containing the factual basis of the arguments that the government will be making to the President in opposition to any commutation.

The government's refusal to allow Mr. Pollard's security-cleared counsel access to the sealed portions of the court file in Mr. Pollard's own case is inconsistent with the intent of the Protective Order, with Executive Order 12958 and with fundamental principles of fairness. For the reasons given above and in the appellant's brief, the district court's order denying counsel's motion for access should be reversed. Dated: September 29, 2004

Respectfully submitted,

(signed)
G. Brian Busey (D.C. Bar No. 066760)
Alexandra Steinberg Barraget (D.C. Bar No. 484148)
Brett A. Walter (D.C. Bar No. 473793)
Morrison & Foerster LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1888
(202) 887-1500

Arthur B. Spitzer (D.C. Bar No. 235960)
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
(202) 457-0800

Robert L Weinberg (D.C. Bar No. 020321)
Stephen R. Greenwald
Robert K. Erlanger
THE AMERICAN ASSOCIATION OF
JEWISH LAWYERS AND JURISTS
2020 K Street, N.W., 7th Floor
Washington, D.C. 20006
(202) 775-0991

Counsel for Amici Curiae

Pursuant to Federal Rule of Appellate Procedure 32(a) and Circuit Rules 28(e)(l) and 32(a), I hereby certify that this brief has been prepared in proportionally-spaced "Times New Roman" 14-point typeface, and contains 6761 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedures 32(a)(7)(B)(iii) and Circuit Rule 32(a)(2).

(signed)
G. Brian Busey
Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW, Suite 5500
Washington, D.C. 20006
(202) 887-1500

I hereby certify that on this 29th day of September 2004,1 caused 2 copies of the foregoing brief to be sent by overnight delivery to the following:

Eliot Lauer, Esq.
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
1200 New Hampshire Avenue, N.W.,
Suite 430 Washington, D.C. 20036

Jacques Semmelman, Esq.
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
101 Park Avenue New York, New York 10178-0061

David Goodhand, Esq.
Assistant United States Attorney
Appellate Division, Room 8104
555 4th Street, NW Washington, DC 20530

(signed)
G. Brian Busey
Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW, Suite 5500
Washington, D.C. 20006 (202)887-1500