Legal Doc: Petition For En Banc Hearing

Eliot Lauer
Jacques Semmelman
Curtis, Mallet-Prevost, Colt & Mosle LLP
1200 New Hampshire Avenue, N.W. Suite 430
Washington, DC 20036
(202) 452-7373

Attorneys for Appellant

(Note: page numbers refer to those in the original document.)

TABLE OF AUTHORITIES...ii

STATEMENT IN SUPPORT OF PETITION FOR REHEARING EN BANC...1

THIS CASE INVOLVES THE FOLLOWING QUESTION OF EXCEPTIONAL IMPORTANCE...2

SUMMARY OF ARGUMENT...2

FACTUAL BACKGROUND...3

1. The Protective Order...3
2. New Counsel Enter the Case and Obtain Security Clearance...4
3. Executive Clemency and the Campaign of Disinformation4
4. The Access Motion...5
5. The Motion for Modification...6
6. The Bryant Letter...7
7. The November 12, 2003 Order...8
8. The Decision of the Court of Appeals...8

ARGUMENT...9

POINT ONE - THE COURT SHOULD GRANT REHEARING EN BANC BECAUSE THE MAJORITY ERRONEOUSLY RULED THAT THE DISTRICT COURT LACKED JURISDICTION TO GRANT ACCESS TO THE MATERIALS IN ITS DOCKET...9

1. The Majority Opinion...9
2. The Dissent...10

POINT TWO - POLLARD'S COUNSEL HAVE A "NEED-TO-KNOW" THE CONTENT OF THE MATERIALS IN ORDER TO SUBMIT A CLEMENCY PETITION...12

CONCLUSION...15

ADDENDUM A - PANEL OPINION DATED JULY 22, 2005

ADDENDUM B - CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

ADDENDUM C - GLOSSARY

ADDENDUM D - TEXT OF PERTINENT REGULATIONS AND FEDERAL REGISTER MATERIALS

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TABLE OF AUTHORITIES

Cases - Page#

(Note: page numbers refer to those in the original document.)

Biddle v. Perovich, 274 U.S. 480 (1927)...13

Stillman v. Dep't of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), rev'd, 319 F.3d 546 (D.C. Cir. 2003)...14, 15

United States ex. rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir. 1950)...9

United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997)...12

United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), cert. denied, _ U.S. _, 125 S.Ct. 1670 (2005)...12

United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003)...8

United States v. Williams, 15 F.3d 1356 (6th Cir. 1994), cert. denied, 513 U.S. 966 (1994)...12

Regulations

28C.F.R. 1.1...13

Other Authorities

Exec. Order 13,292, 68 Fed.Reg. 15,315...13, 14

U.S. Const., Art. II, sec. 2, cl. 1...13

STATEMENT IN SUPPORT OF PETITION FOR REHEARING ENBANC

On July 22, 2005, a divided panel of this Court affirmed the Orders of the district court (Johnson, J. and Hogan, J.) which denied the motion by Appellant Jonathan J. Pollard ("Pollard") to allow his security-cleared counsel access to classified pre-sentencing memoranda that had been filed with the district court in 1987 (the "Access Motion"). The documents had been placed under seal pursuant to a protective order (A-72)¹ (the "Protective Order") which contemplated future access by successor counsel with proper clearance.

1. Citations in the form "A- " are to the Joint Appendix.

Appellant was sentenced to life in prison in 1987, following a guilty plea. Prior to sentencing, the Government and the defense (through prior counsel) submitted pre-sentencing memoranda to the Court. Classified portions of the memoranda were redacted by the Court Security Officer. The redactions totaled approximately 40 pages. The unredacted materials (the "Materials") were placed under seal by the district court pursuant to the Protective Order.

No subsequent representative of Appellant has seen the Materials. Current counsel, who have the appropriate security clearance, seek access for the purpose of making an application for executive clemency. The Access Motion, made pursuant to the Protective Order, sought access to the Materials in a secure Government facility, under strict conditions of confidentiality.

The Government conceded subject matter jurisdiction over the Access Motion. However, at oral argument, Judge Sentelle sua sponte questioned jurisdiction. The issue was not briefed. In a written opinion, the majority (Sentelle and Henderson, C.JJ.) held that, due to the constitutional allocation of the clemency power to the President, federal courts lack jurisdiction to allow access to their own dockets if the purpose of access is to enable counsel to prepare and submit an application for executive clemency.

The dissent (Rogers, C.J.) found that there is unquestionably jurisdiction to allow access. The dissent reasoned that allowing access to docket materials is plainly within the province of the Court, is contemplated by the Protective Order, and would not interfere in any way with the President's clemency power. However, the dissent concluded that access was not warranted here because counsel had no "need-to-know" the content of the Materials, since a "need-to-know" could only arise if the President specifically requested the assistance of Appellant's counsel in making the clemency determination. The majority expressly did not reach the issue of whether counsel had a "need-to-know."

THIS CASE INVOLVES THE FOLLOWING OUESTION OF EXCEPTIONAL IMPORTANCE

Where a federal court has placed classified court docket materials under seal pursuant to a protective order, does the court lack subject matter jurisdiction to allow security-cleared counsel access to the materials simply because the objective of the access is to enable counsel to prepare and submit a clemency application? The majority answered in the affirmative, the dissent in the negative.

SUMMARY OF ARGUMENT

The district court had jurisdiction to grant the Access Motion. The Materials were prepared for litigation, submitted to the Court before sentencing, and placed under seal pursuant to a Protective Order that provides for future access upon permission of the Court. The Materials are Court documents, and are fully within the jurisdiction of the Court. Allowing access would not interfere with the President's clemency power, because the President is not compelled to act in any way as a result of the Court's allowing access. That clemency is the ultimate objective does not transform adjudication of the Access Motion under the Court's Protective Order into a violation of the separation of powers.

Furthermore, Appellant's counsel has a "need-to-know." Clemency is a lawful and authorized governmental function. By regulation, applications for clemency are to be submitted by the petitioner. To prepare and submit such a petition for Appellant, counsel requires access to the Materials. The Materials are and remain highly relevant to clemency. Indeed, on at least 25 known occasions since the sentencing, the DOJ (which opposes clemency) has unilaterally allowed access to the Materials- never to a representative of Appellant. The record does not indicate, and the Government does not claim, that the DOJ has only allowed access to persons whose assistance the President has requested. There is no basis for concluding that only those whose assistance the President expressly invites have a "need-to-know." Moreover, limiting the Court's authority to allow access to its docket only upon the request of the President would be incompatible with the Protective Order, and would violate separation of powers.

FACTUAL BACKGROUND

A. The Protective Order

On June 4, 1986, pursuant to a written Plea Agreement, Appellant pleaded guilty to conspiracy to commit espionage. Appellant had delivered classified information to Israel. (A-32)

Prior to sentencing, the Government and the defense each submitted memoranda to the Court. Pursuant to a Protective Order (A-72), a Court Security Officer redacted portions deemed classified. The classified portions were placed under seal. (A-295)

Inter alia, the Protective Order contemplated future access by security-cleared nongovernmental persons (such as successor counsel) with permission of the Court:

All other individuals other than defendant, above-named defense counsel, appropriately cleared Department of Justice 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 Department of Justice through the Court Security Officer

and the permission of this Court.

(A-73) (emphasis added).

Four documents were redacted: a Declaration of Secretary of Defense Caspar Weinberger (A-450-469); a memorandum personally prepared by Appellant (A-471-533); a memorandum prepared by Appellant's then-attorney, Richard Hibey (A-535-582); and the Government's reply (A-584-609). In addition, the minutes of a sidebar conference held during sentencing were placed under seal. (A-612) The redactions totaled approximately 40 pages. (A-638)

Prior to sentencing, Pollard and Hibey were allowed access to the Materials. (A-391) However, since the sentencing 18 years ago, no one representing Pollard has been allowed to see the Materials. (A-296) A heavily redacted version is in the public record. (A-450-613)

On March 4, 1987, Appellant was sentenced to life in prison. (A-155) He has been incarcerated continuously since his arrest on November 21, 1985. (A-28)

B. New Counsel Enter the Case and Obtain Security Clearance

On May 17, 2000, Pollard retained the undersigned (Eliot Lauer and Jacques Semmelman) as pro bono counsel.

Counsel applied for security clearance for the express purpose of seeing the Materials. On November 2, 2000, following a thorough investigation, the DOJ granted Mr. Lauer "Top Secret" security clearance.² Nevertheless, the DOJ thereafter refused to stipulate to access under the Protective Order. (A-294)

2. Mr. Semmelman, a former Assistant U.S. Attorney, received the same clearance shortly thereafter. (A-650)

C. Executive Clemency and the Campaign of Disinformation

Seeking relief from his life sentence (now in its twentieth year), Appellant has sought executive clemency on several occasions. Each application has been met with fierce opposition from the DOJ. (A-398-399, 403)

To create obstacles to clemency, Pollard's adversaries have engaged in a campaign of disinformation. Using their actual or professed familiarity with the Materials to legitimize their assertions, they have spread falsehoods in the media, where they are seen and heard by those in a1 position to influence clemency decisions. (A-296, 398-399)

D. The Access Motion

On November 29, 2000, counsel filed an Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order, which asked the Court, in accordance with the Protective Order, to add Mr. Lauer's name to the list of persons designated in the Protective Order as authorized to see the Materials (the "Access Motion"). (A-289)

In an affidavit, Mr. Lauer explained that he required access to the Materials to represent his client in connection with a clemency application and related political initiatives:

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.

(A-296) Counsel required access to the Materials in order to be able to speak authoritatively (without revealing their contents) about what Pollard did and did not do, and to respond to the campaign being waged by opponents of clemency. (A-296)

The Access Motion was not a discovery motion. Counsel was only asking to see Materials that had already been shown to Pollard and his prior counsel, and docketed with the Court.

On December 8, 2000, the Government filed its Opposition to the Access Motion. (A-327) Inter alia, the Government asserted that counsel had no "need-to-know" what was in the Materials. (A-331) The Government stated that the Materials were irrelevant to clemency 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)

At oral argument in the district court, the Government continued to insist that the Materials were irrelevant to the clemency process. As in its Opposition, the Government did not contend that "need-to-know" hinges on whether the President has requested assistance in making a clemency determination. The Government asserted that there was no "need-to-know" because the Materials were outdated, dormant, and of no conceivable relevance to a clemency determination. (A-427-428) The Government argued that "materiality" and "relevance" are the touchstones of "need-to-know." (A-428) 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 emphasized that "if the President isn't using Secretary Weinberger's materials, then there is no relevance and there is no materiality. .. . They haven't demonstrated such a use to this Court. And so they can't make the need to know." (A-426-427)

Government counsel specifically told the Court that "I don't think the Government needs to use that classified information to justify Mr. Pollard's sentence in this case." (A-428)

By Memorandum Order dated January 12, 2001, Judge Johnson denied the Access Motion. (A-440) Judge Johnson did not express any jurisdictional concerns.

On January 19, 2001, counsel filed a Motion for Reconsideration. (A-444) On August 7, 2001, Judge Johnson issued an Order denying the Motion for Reconsideration. (A-635)

E. The Motion for Modification

In addition to opposing the Access Motion on the ground that there was no "need-to-know," the Government represented to the district court that Mr. Lauer was not eligible to see the Materials because he did not have the proper security clearance. (A-333, 424, 438) Judge Johnson accepted the Government's representation as another basis for denying the Access Motion. (A-440) However, the representation turned out to be untrue, as the Government effectively conceded months later, in a letter dated August 3, 2001. (A-636)

On August 16, 2001, counsel filed a Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter. (A-650)³

3. The Government has apparently abandoned its earlier position that counsel lacks the proper security clearance. Indeed, the sole issue raised in the Government's appellate brief as a basis for denying access was lack of "need-to-know." {See Dissent at 8)

F. The Bryant Letter

On September 10, 2001, Assistant Attorney General Daniel J. Bryant responded to a request for information by Congressman Anthony Weiner of New York. (A-663-664, 754) Mr. Bryant's letter contained a startling admission:

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.

(A-754) (emphasis added). This admission repudiated the premise of the Government's Opposition to the Access Motion that there was no "need-to-know" because the Materials had become outdated and irrelevant, and were of no interest whatsoever. (A-331-334, 427-428)

Since the Government insists it has only allowed access to the Materials to those with a "need-to-know" (A-655), the Bryant Letter effectively conceded that on 25 occasions between 1993 and 2001 the DOJ unilaterally determined that someone had a "need-to-know."

The Bryant Letter did not disclose the circumstances under which the DOJ had allowed the 25 instances of access. However, since the Materials comprise pre-sentencing memoranda and sentencing minutes, and do not comprise defense or intelligence files, it is apparent that these instances of Government access were all in connection with initiatives related to Pollard (as opposed to unrelated inspections for defense or intelligence purposes).

Indeed, the first date mentioned in the Bryant Letter-November 19, 1993-occurred days after Israeli Prime Minister Yitzhak Rabin had made a highly-publicized request to President Clinton to grant Pollard clemency. (A-766-773) The President sought the DOJ's position (A-766), and the DOJ immediately accessed the Materials (A-754). By its conduct, the DOJ, which opposes clemency (A-398-399, 403), demonstrated that it considers the Materials quite relevant to the clemency issue.

On May 9, 2002, counsel filed a Motion to Enlarge the Scope of the Pending Motion for Modification, to include the Bryant Letter. (A-749) The motion was granted. (A-783)

G. The November 12, 2003 Order

By Order dated March 4, 2002, the case was reassigned to Hon. Thomas F. Hogan. (A-734) On September 2, 2003, Judge Hogan heard oral argument on the Motion for Modification. (A-784) No jurisdictional objection was raised by the Government or by the Court. On November 12, 2003, Judge Hogan denied the Motion for Modification, without expressing any jurisdictional concern. (A-865) See United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003).

H. The Decision of the Court of Appeals

Appellant timely appealed from the January 12, 2001 Order, the August 7, 2001 Order, and the November 12, 2003 Order. (A-665, 869)

In an opinion issued July 22, 2005, a divided panel of this Court affirmed. Even though the Government's brief had expressly conceded jurisdiction, and without briefing of the issue, the majority (Sentelle and Henderson, C.JJ.) ruled sua sponte that a federal court lacks jurisdiction to hear a motion for access to classified court docket materials if the objective is to make a clemency application.

Judge Rogers dissented, finding that jurisdiction plainly exists to allow access to court docket materials irrespective of the motivation for access, and that granting access in this case would not infringe in any way on the President's clemency power. However, Judge Rogers concluded that counsel had no "need-to-know" because the President had not specifically requested counsel's input. The majority expressly did not reach the issue of whether counsel had a "need-to-know."

In over four years of litigation, before two district judges (Johnson and Hogan, JJ.) neither judge ever expressed any jurisdictional concern about the Access Motion. And, in its brief to this Court, the Government expressly conceded "the district Court's jurisdiction over the access issue in this case because the terms of the Protective Order reserve that role for the court." (Gov't Br. 44 n.25)

At oral argument, Judge Sentelle raised the jurisdictional issue sua sponte. The issue was not briefed. We respectfully submit that the majority erred in holding that there is no jurisdiction.

A. The Majority Opinion

The majority held that "we lack the authority to compel the executive branch to disclose any documents for the purposes of a clemency petition," and that "it is entirely out of our power to compel discovery of or access to documents for the sake of a clemency petition." (Slip Op. at 14, 16) (emphasis added). The stated rationale was that clemency is exclusively an executive function, "over which courts have no review[.]" (Slip Op. at 16) (quoting United States ex. rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950)).

The majority did not explain how allowing counsel access to materials in a court's docket would interfere with the President's power to grant or deny clemency, or how such access would violate the principle that courts may not review clemency decisions. Nor did the majority explain how allowing access to the Materials-prepared for litigation, submitted to the Court, shown to prior counsel, and placed under seal by the Court pursuant to a Protective Order-would constitute inappropriate compulsion of the Executive Branch to disclose documents.

The majority noted a "practical" concern that granting access would "open a floodgate of similar requests." (Slip Op. 14) The majority wrote that "most federal prisoners who have run out of other avenues of appeal could . .. conceive of something they could seek to discover from the Executive Branch that might be plausibly relevant to a clemency petition. The undue burden such requests would impose on the Executive Branch alone cautions restraint." (Slip Op. at 15) (emphasis added) (footnote omitted). This concern overlooked the fact that Appellant's counsel was only seeking access to court docket materials, and was not seeking discovery from the Executive Branch. The Government's brief had expressly conceded that "the classified information is contained in court documents and subject to a court-issued Protective Order." (Gov't Br. 42) And the Government acknowledged that these circumstances are "unusual." (Id.) The concern about opening a floodgate is unwarranted.

During oral argument, the Government conceded that the Protective Order, by its terms, provides for access beyond that allowed in other cases. Whereas in other cases, protective orders confine access to the pre-conviction litigation process, the Protective Order is not so circumscribed:

[T]oday these protective orders-these CfPA protective orders are drafted more carefully, shall we say, to circumscribe their use more directly to the case-the criminal case, and not for other purposes.

(Tr. Mar. 15, 2005 at 29) The majority disregarded that concession.

B. The Dissent

In a ten-page dissent, Judge Rogers concluded that the district court unquestionably had jurisdiction to grant access to the Materials.

The dissent observed that the Materials "were created for [Pollard's] sentencing, filed with the district court, and sealed pursuant to a Protective Order." (Dissent at 2) The dissent also noted that "[p]ursuant to the Protective Order, persons not identified therein, such as Pollard's current counsel, may obtain access" after receiving security clearance, which includes a "need to know." (Id. at 2) On these facts, "there is no jurisdictional bar to the Court's consideration of the access motion[.]" (Id. at 7-8)

The majority's reasoning "ignore[d] the fact. .. that the documents at issue were created as part of a judicial process and are governed by the Protective Order." (Id. at 3) While the Materials are "nominally in the custody of the Justice Department's Security and Emergency Planning Staff," the district court "has continuing control over them on account of the perpetual Protective Order[.]" (Id. at 3) The logical implication of the majority's view is that the district court "would be in the untenable position of lacking jurisdiction over motions that relate to documents that were filed with it and over which it has continuing control." (Id. at 4)

Furthermore, this case "does not involve the traditional request for access to classified documents that are within the Executive Branch's possession," so that the majority's concern about opening a floodgate to similar applications was "misplaced." (Id. at 3)

The dissent noted that while the majority "hypothesizes a conflict with the President's clemency power under the Constitution," neither the request for access nor the Court's grant of access "poses interference with the President's clemency power." (Id. at 1) And "the court today never explains how the district court's exercise of jurisdiction over the access motion impairs or interferes with the President's clemency power, and, indeed, it cannot because the motion does not involve the President's constitutional prerogative to grant clemency or even the process by which the President decides whether or not to grant clemency." (Id. at 5) The dissent concluded:

The access motion does not relate to the President's decision regarding clemency, as he remains free to review, ignore, act on, or fail to act on any petition for clemency that Pollard's counsel might file, regardless of whether a court determines that his counsel may have access to classified documents to prepare such a petition. Thus, the President's constitutional duty is not only unimpaired by the access motion, it is wholly unaffected by it.

(Id. at 5) (emphasis added).

Appellant respectfully submits that Judge Rogers's analysis of the jurisdictional issue is correct. The Materials were part of the adjudicatory process that resulted in Pollard's life sentence. They are unquestionably judicial records. See United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) ("what makes a document a judicial record ... is the role it plays in the adjudicatory process.").

This case does not involve judicial intrusion on the prerogative of the Executive Branch. That clemency is the ultimate objective does not transform judicial adjudication under the Court's Protective Order into a violation of separation of powers. See United States v. Williams, 15 F.3d 1356, 1360-1364 (6th Cir. 1994), cert. denied, 513 U.S. 966 (1994); United States v. Moussaoui, 382 F.3d 453, 468 (4th Cir. 2004), cert. denied, _ U.S. _, 125 S.Ct. 1670 (2005) ("Separation of powers does not mean . . . that each branch is prohibited from any activity that might have an impact on another.") (emphasis in original).

This Court should grant en banc review so that it can consider, upon full briefing and argument, the compelling arguments in favor of jurisdiction, to undo a precedent that, we respectfully submit, unnecessarily and incorrectly limits the jurisdiction of the federal courts.

The majority expressly did not reach the issue of whether counsel had a "need-to-know" the content of the Materials. (Slip Op. at 14) Only Judge Rogers reached the issue, and concluded there was no "need-to-know."

Contrary to the assertions made by the Government below that the Materials are irrelevant to clemency (A-331-334, 426-428), the record now reflects that since 1993 the Materials have been repeatedly accessed by DOJ personnel (A-754), undoubtedly as part of the DOJ's efforts to defeat any clemency application. (A-398-399, 403) Not only did the DOJ rush to access the Materials immediately after Prime Minister Rabin publicly asked President Clinton to grant Pollard clemency (A-754, 766-773), but over the ensuing eight years-during which Pollard made additional requests for clemency-the DOJ accessed the Materials some two dozen times. (A-754) In the view of the DOJ, therefore, the Materials are very relevant to clemency.

By regulation, the clemency process is initiated by the petitioner. See 28 C.F.R. 1.1. Just as the DOJ unilaterally determined on two dozen occasions that it had a "need-to-know" to oppose clemency, so too counsel for Pollard has a "need-to-know" in order to submit a clemency petition based on the record, especially the core documents that led to the life sentence.

In addition, the redacted Materials reflect that Secretary Weinberger emphasized projected consequences of Pollard's conduct. (A-539, 602) It is critical for counsel to see what those projections were. With that knowledge, counsel can ascertain whether or not the projections ever materialized in the ensuing 18 years. If they have not, counsel can fashion a compelling presentation for clemency based upon the fact that the life sentence was motivated by anticipated harm that never occurred. To undertake that process, counsel requires access to the Materials.

Judge Rogers quoted an Executive Order which defines "need-to-know" as whether one requires access "in order to perform or assist in a lawful and authorized governmental function." (Dissent at 8) (quoting Exec. Order 13,292, 68 Fed.Reg. 15,315, 15,322). However, Judge Rogers construed and applied the "need-to-know" definition of the Executive Order in a manner which is (a) not grounded in the text of the Executive Order; (b) incompatible with the terms of the Protective Order; (c) fundamentally at odds with the separation of powers; and (d) incompatible with the conduct of the Government in this and other matters.

Judge Rogers recognized that "[t]he President's decision to grant or to deny clemency" is a lawful and authorized governmental function. (Dissent at 8) (citing U.S. Const., Art. II, sec. 2, cl. 1; Biddle v. Perovich, 274 U.S. 480,486 (1927) (clemency "is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme")). However, Judge Rogers concluded "it is only the President's decisionmaking process that is 'a lawful and authorized governmental function,'" (Dissent at 9) (emphasis in original) so that "to come within the 'need-to-know' standard, Pollard's counsel must require access to assist the President's determination and not simply to assist his client, which, by contrast, would be in the nature of a private act." (Id. at 9) Judge Rogers stated that "if Pollard's counsel desires to assist the President's clemency determination, then under the 'need-to-know' standard, the President must seek his assistance and thereby involve counsel in the 'lawful and authorized governmental function.'" (Id. at 9) (emphasis added).

This interpretation of the Executive Order is not grounded in the text of the Executive Order nor in a reasonable inference from the text. The Executive Order expressly provides that the issuance of "eligibility for access," i.e., security clearance, is to be made "by an agency head or the agency head's designee[.]" Exec. Order 13,292 at § 4.1(a)(l). By contrast, nowhere does the Executive Order state or imply that only the Executive Branch can determine who may assist in a lawful and authorized governmental function. And such an interpretation flies in the face of the Protective Order, which provides that access to the Materials will be by "permission of this Court," not the Executive Branch. (A-73)

Furthermore, divesting the Court of its independent authority to allow access to its own docket, and transferring that authority to the President, violates the separation of powers.

Judge Rogers's approach is also incompatible with the conduct of the Government in this matter as well as in other matters. With one exception-the Rabin incident-(A-766-773), there is no evidence that the two dozen instances of DOJ access were precipitated by the President's request for assistance. The Government has never claimed that each instance of access was in response to a Presidential request for assistance. The conclusion that "need-to-know" only arises when the President specifically seeks assistance is incompatible with the DOJ's conduct in this matter.

And in other situations, the Government has not construed the "need-to-know" in this manner. In Stillman v. Dep't of Defense, 209 F. Supp. 2d 185, 191 (D.D.C. 2002), rev'd on other grounds, 319 F.3d 546 (D.C. Cir. 2003), a case involving the same "need-to-know" standard as in this case, the Government admitted giving private counsel access to classified materials because counsel was "performing a lawful and authorized function by negotiating" an agreement with the Government on behalf of a client. Although Stillman is not a clemency case, the Government's concession demonstrates that private counsel's "need-to-know" the content of classified materials can arise out of the representation of a private client, and is not confined to those specifically called upon to render assistance by the President or by other high-ranking government officials.

There is no justification for refusing security-cleared counsel access to their client's Court docket, especially when the DOJ unilaterally permits extensive access without any judicial scrutiny and (apparently) without any prompting by the President. Denying security-cleared counsel the ability to see the Materials imposes an unjustifiable barrier to presenting an effective clemency petition on behalf of a client serving a life sentence.

CONCLUSION

The petition for rehearing en banc should be granted.

Dated: September 2, 2005

Respectfully submitted,

CURTIS, MALLET-PREVOST, COLT & MOSLE LLP

Eliot Lauer (D.C. Bar No. 203786)
Jacques Semmelman

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

101 Park Avenue
New York, NY 10178
(212)696-6000

Attorneys for Defendant-Appellant Jonathan Jay Pollard

The parties:

Appellant: Jonathan J. Pollard ("Pollard") (Defendant-Petitioner below)

Appellee: United States of America (Plaintiff-Respondent below)

The amici:

The American Civil Liberties Union of the National Capital Area (also amici below); the American Association of Jewish Lawyers and Jurists; the National Association of Criminal Defense Lawyers; and various law professors and other distinguished individuals (also amici below).

Rulings Under Review

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)

Opinion of the U.S. Court of Appeals, dated July 25, 2005, which affirmed the rulings below. This petition for rehearing en banc is directed at this Opinion.

Related and Prior Cases

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).

United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001).

United States v. Pollard, 290 F. Supp. 2d 153 (D.D.C. 2003).

Dated: September 2, 2005

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

ADDENDUM D

TEXT OF PERTINENT REGULATIONS
AND FEDERAL REGISTER MATERIALS

Regulations

TITLE 28 - JUDICIAL ADMINISTRATION

CHAPTER I - DEPARTMENT OF JUSTICE

PART 1 - EXECUTIVE CLEMENCY

28 C.F.R. 1.1

§1.1 Submission of petition; form to be used; contents of petition.

A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.

Classified National Security Information

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation's progress depends on the free flow of information. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation's security remains a priority.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

PART 4-SAFEGUARDING

Sec. 4.1. General Restrictions on Access, (a) A person may have access to classified information provided that:

(1) a favorable determination of eligibility for access has been made by an agency head or the agency head's designee;

(2) the person has signed an approved nondisclosure agreement; and

(3) the person has a need-to-know the information.

(z) "Need-to-know" means a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.

PART 6-GENERAL PROVISIONS

Sec. 6.1. Definitions. For purposes of this order:

(a) "Access" means the ability or opportunity to gain knowledge of classified information.

STATE OF NEW YORK )
COUNTY OF NEW YORK)

ss.:

AFFIDAVIT OF SERVICE BY OVERNIGHT FEDERAL EXPRESS NEXT DAY AIR

I, NELSON CABAN, party to being duly sworn, depose and say that deponent is not a party to the action and resides at the address shown above or at

On SEP 01 2005 deponent served the within:

Petition for Rehearing En Banc

upon:

SEE ATTACHED LIST

the address(es) designated by said attorney(s) for that purpose by depositing 2 true copy(ies) of same, enclosed in a properly addressed wrapper in an Overnight Next Day Air Federal Express Official Depository, under the exclusive custody and care of Federal Express, within the State of New York.

Sworn to before me on

SEP 01 2005

TINA A. FISHER
Notary Public State of New York
No. 02FI5023658
Qualified in New York County
Commission Expires Feb 14, 2006

Job #196093

David Goodhand
United States Attorney's Office
Attorneys for Appellee
Judiciary Center Building
555 Fourth Street, N.W.
Washington, DC 20530
(202)514-7118

Arthur Spitzer, Esq.
American Civil Liberties Union
1400 Twentieth Street
Washington, DC 20036

Brett Walker, Esq.
Morrison & Foerster, LLP
1650 Tysons Boulevard
Suite 300
McLean, VA 22101

Professor Kenneth Lasson
University of Baltimore School of Law
1420 N. Charles Street
Baltimore, MD 21201

Robert Weinberg, Esq.
American Association of Jewish Lawyers and Jurists
5171 North 37th Road
Arlington, VA 22207