UNITED STATES OF AMERICA
JONATHAN J. POLLARD,
Criminal No. 86-0207 (TFH)
(Oral argument requested)
DEFENDANT'S SUPPLEMENTAL REPLY
MEMORANDUM BASED UPON DISTRICT OF COLUMBIA CASE
DECIDED SUBSEQUENT TO BRIEFING OF DEFENDANT'S MOTION FOR
MODIFICATION OF THE COURT'S JANUARY 12, 2001 MEMORANDUM ORDER
BASED UPON THE GOVERNMENT'S AUGUST 3, 2001 LETTER
Defendant Jonathan J. Pollard ("Pollard"), by his undersigned attorneys, respectfully submits this supplemental reply memorandum in support of his pending "Motion for Modification of the Court's January 12, 2001 Memorandum Order Based Upon the Government's August 3, 2001 Letter," filed August 16, 2001 (the "Motion for Modification").
This supplemental reply is based upon the decision in Stillman v. Dep't of Defense, 209 F. Supp. 2d 185 (D.D.C. 2002), appeal pending, No. 02-5234 (D.C. Cir. argued Nov. 12, 2002), which was decided after May 9, 2002, the date Defendant filed his Reply Memorandum in support of the Motion for Modification (the "Reply Memorandum"). The undersigned counsel learned of the Stillman decision only very recently, and bring it to the attention of the Court because it strongly supports the grant of counsel's access to the sealed docket materials in this case, and repudiates the argument made by the Government in opposition to access.
Stillman establishes that the Government's position in this case is not viable. The Government maintains that, while it does not doubt the trustworthiness of defense counsel, the theoretical incremental risk to national security that arises out of allowing even one more person-even if that person is a security-cleared attorney-to see the documents is, in and of itself, enough to justify denial of access. Stillman rejects this argument.
Under Stillman, the Government's position must be evaluated in the context of the access afforded by the Government to its own personnel. As Assistant Attorney General Daniel J. Bryant admits in his letter dated September 10, 2001 (the "Bryant Letter"), there have already been at least twenty-five instances of access, between November 1993 and January 2001, to the sealed docket materials at issue. (Ex. A, Defendant's Motion to Enlarge Scope of His Pending Motion for Modification Filed August 16, 2001 Based Upon Evidence Uncovered After That Date ("Motion to Enlarge Scope"), filed May 9, 2002)
The Government takes the position, purely as a matter of theory, that a twenty-sixth viewing, this one by Pollard's security-cleared counsel, poses an unacceptably high risk of inadvertent disclosure. (Government's Opposition to Defense Counsel's Request to Access Sealed Classified Docket Materials, filed December 8, 2000, at pp. 3-4; Government's Opposition to Defendant's Second Motion for Reconsideration of Modification of the Court's January 12, 2001 Order, filed April 9, 2002 ("Gov't Opp'n to Motion for Modification"), at pp. 6, 10)
As in Stillman, the Government does not take issue with the integrity or trustworthiness of Defendant's counsel. (Gov't Opp'n to Motion for Modification, at pp. 5-6) To the contrary, the Government has manifested its confidence in counsel by according them Top Secret security clearances and by admitting, in its August 3, 2001 letter signed by Court Security Officer Michael P. Macisso (the "Macisso Letter"), that the DOJ's background investigations support an even higher level of "SCI" clearance. (Motion for Modification, Ex. A) Rather, the Government's argument concerning risk to national security is premised entirely on its theoretical concern with the risk of inadvertent disclosure if even one more person is granted access. (Gov't Opp'n to Motion for Modification at pp. 5-6, 10)
The Government made the identical argument in Stillman. The court rejected it as "unpersuasive," "inconsistent," based only on "broad generalizations," and held it an insufficient basis to override the fundamental constitutional right of a litigant to communicate with counsel concerning the content of the materials. Stillman, 209 F. Supp. 2d at 226-30. (1)
(1) The Stillman court also rejected the Government's denial of access to plaintiff's attorney based on the assertion that counsel had no "need to know." The court discussed at length the First Amendment right to confer with one's counsel, and held that the Government's denial of access to plaintiff's attorney violated plaintiff's constitutional right to confer and communicate with his lawyer. Stillman, 209 F. Supp. 2d at 214-16. We submit that this principle applies here as well. Nevertheless, our position does not hinge on a constitutional claim. Rather, the immediate import of Stillman is that it repudiates the Government's position concerning incremental risk to national security. Conclusion
Criticizing the Government for allowing access to its personnel but not to the plaintiff's lawyer, the court noted that the Government's argument was "undermined by [its] inability to tell the court how many people have seen [the material] already." Id. at 229 n. 32.
As in Stillman, the Government here has been "less than consistent in enforcing its concern about the residual risk of inadvertent disclosure," id. at 229, as its purported concern with the risk of inadvertent disclosure is undercut by the fact that, as Assistant Attorney General Bryant admits, there have been at least twenty-five instances in which people were unilaterally allowed by the DOJ to view Pollard's sealed docket materials. (Motion to Enlarge Scope, Ex. A)
The Government's purported justification for denial of counsel's access in this case-the theoretical incremental risk associated with allowing a twenty-sixth viewing of the materials-should be rejected by this Court as it was rejected in Stillman. The Court should modify the January 12, 2001 Order accordingly and allow counsel access to the sealed docket materials.
Dated:December 6, 2002
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
Eliot Lauer (D.C. Bar No. 203786)
Jacques Semmelman (Admitted pro hac vice)
101 Park Avenue
New York, New York 10178-0061
fax (212) 697-1559
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Fax (202) 452-7333
Attorneys for Jonathan Jay Pollard
DOROTHI McCOY certifies as follows under penalty of perjury:
On December 6, 2002, I caused to be served by hand delivery true copies of the foregoing Defendant's Supplemental Reply Memorandum In Support of Motion for Modification Based Upon the Government's August 3, 2001 Letter, on
Steven Pelak, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001