Legal Doc: Pollard Attorneys' Letter to President Bush Re Clemency

Curtis, Mallet-Prevost, Colt & Mosle llp
Attorneys and Counsellors at Law
101 Park Avenue
New York, New York 101780061

August 14, 2003

President George W. Bush
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Re: Request for Security-Cleared Attorneys' Access to Sentencing
Docket For Purposes of Clemency Application on Behalf of Jonathan Pollard

Dear Mr. President:

We represent Jonathan Pollard, now serving his eighteenth year of a life sentence for delivering classified information to the State of Israel.

We intend to make an application on Mr. Pollard's behalf for executive clemency. However, we expect, based upon our experience with the prior administration, that any such application will be met with opposition from certain quarters within the government.

In order to effectively address such opposition, and in order to present a viable and effective clemency application, it is essential for us, as Mr. Pollard's attorneys, to be in a position to state that we have examined all of the court docket materials that preceded Mr. Pollard's sentencing to life in prison. To that end, we have been attempting, thus far without success, to obtain access to the court's sentencing docket in the U.S. District Court for the District of Columbia (United States v. Pollard, Crim. No. 86-0207). The Department of Justice ("DOJ") has refused us access to these materials.

At issue are portions of five documents in the court's docket. These documents were submitted to the sentencing judge (by both sides) shortly before Mr. Pollard's sentencing on March 4, 1987. The most significant document was a declaration by then-Secretary of Defense Caspar Weinberger. As portions of these documents were classified, the publicly available versions of the documents were redacted. The redacted materials comprise approximately 35 to 40 pages. Although shortly before sentencing Mr. Pollard and his then-attorney were permitted to read the documents (and even authored two of the documents), no one representing Mr. Pollard has since been allowed access to these materials by the DOJ.

We took on Mr. Pollard's pro bono legal representation in 2000. At that time, we asked the DOJ to grant us appropriate security clearances so that we could read these docket materials in a secure government facility. After a thorough background investigation, the DOJ informed Mr. Lauer, and shortly thereafter Mr. Semmelman, that they had each been issued the appropriate "Top Secret" security clearance. Immediately upon receiving his security clearance, Mr. Lauer attempted to make an appointment with the DOJ to view the documents. However, the DOJ refused to allow him access.

In November 2000, in the final weeks of President Clinton's administration, we filed a motion in the U.S. District Court, asking the Court to allow Mr. Lauer access in connection with a clemency application. In opposition to the motion, the government represented to the Court that Mr. Lauer had not received the security clearance needed to access these documents, which the government stated was "SCI" (Sensitive Compartmented Information), a purportedly higher level than "Top Secret." The government also took the position that Mr. Lauer had no "need to know" what was in the documents, and told the Court that no one in the executive branch considering clemency for Mr. Pollard could possibly have any interest in reading these materials, which dated back to 1987. (Jan. 11, 2001 Transcript at pp. 21-25) Based upon the government's representations, the Court denied the motion. (Order dated Jan. 12, 2001)

Months later, through the efforts of a Member of Congress, Anthony Weiner of New York, we received a letter from the DOJ's Court Security Officer which admitted that our background investigation would indeed support SCI access, merely upon a showing of "need to know" and certain simple ministerial steps. Thus, the government's argument to the Court that Mr. Lauer had not been accorded "SCI" security clearance was simply untrue. Based upon the letter from the DOJ's Court Security Officer, we filed a motion with the Court asking for modification of its order denying access. That motion is pending. The Court has scheduled oral argument for September 2, 2003.

Congressman Weiner has also received a subsequent letter from the DOJ admitting that between 1993 and 2001 there were 25 instances of access to these sealed docket materials by DOJ personnel. These dates coincide with points in time when applications for clemency were being made on behalf of Mr. Pollard. As the materials in question comprise a court sentencing file and not, for example, an intelligence agency file, there is no question that the access afforded by the DOJ to its own personnel was in connection with efforts to oppose clemency or similar relief for Mr. Pollard. Surely if government personnel had a "need to know" the contents of these documents in order to oppose relief for Mr. Pollard, security-cleared defense counsel have at least the same "need to know" in order to seek relief.

Recent developments suggest the real reason why certain people in the government have gone to such lengths to resist our efforts to see these documents. For example, journalist John Loftus (a former DOJ attorney) has written in the June 2003 issue of Moment Magazine that in connection with sentencing, Mr. Pollard was wrongly accused of acts that were later found to be the responsibility of Aldrich Ames and Robert Hanssen. Mr. Loftus reports that Ames, at the time thought to be a reliable CIA officer, was given the task of preparing the damage assessment in the Pollard matter, and used the opportunity to deflect culpability away from himself and onto Mr. Pollard. And in an interview with journalist and author Edwin Black ("IBM and the Holocaust") that was published in the June 14, 2002 issue of The Jewish Week, Mr. Weinberger stated that the Pollard case was "a very minor matter, but made very important." This is certainly at odds with Mr. Weinberger's public statements at the time of sentencing, including statements made directly to the sentencing judge.

To make a serious and effective application for clemency, and to fashion a viable response to anticipated opposition to any such application, basic fairness dictates that we be permitted to see the sealed docket materials. We have the proper security clearances, and we certainly have the "need to know." We hope the Court will grant us access. However, irrespective of the Court's ruling, the Attorney General can consent. The President has the authority to instruct the Attorney General to allow us access. We respectfully urge you to do so.


Eliot Lauer
Jacques Semmelman