Legal Doc: Jonathan Pollard's Petition to the United States Supreme Court for a Writ of Certiorari
See also original PDF document.Filed February 8, 2006
The United States Court of Appeals for the District of Columbia Circuit, in a two-to-one ruling, held that the doctrine of separation of powers precludes the exercise of subject matter jurisdiction, by a United States district court, over a defendant’s post-conviction motion to allow his successor counsel access to classified docket materials considered by the district court prior to sentencing, if the purpose of the desired access is to enable counsel to study the court record in order to make an application for executive clemency. The Court of Appeals reached this conclusion sua sponte even though the district court’s protective order, pursuant to which the documents were placed under seal, expressly contemplated access by successor counsel with court approval.
The Court of Appeals held that, because the objective of the desired access was to enable counsel to prepare a clemency application with knowledge of the full court record, and because the decision whether or not to grant clemency is constitutionally allocated to the Executive Branch, it would somehow violate the doctrine of separation of powers if the court were to exercise its jurisdiction in order to decide whether or not to grant the motion for access to the court’s own docket.
This extreme and unprecedented application of the doctrine of separation of powers is incompatible with longstanding principles established by this Court, and is in conflict with the approach to the doctrine followed in the Fourth, Fifth, Sixth, and Ninth Circuits.
This petition, which implicates the fundamental issue of the scope and breadth of the doctrine of separation of powers, presents the following question:
Where a federal district court has placed classified court docket materials under seal pursuant to a protective order which expressly provides for future access to the docket materials with court approval, does the separation of powers doctrine mandate that the court lacks subject matter jurisdiction to allow security-cleared successor counsel access to its docket materials simply because counsel’s objective in seeking access is to study the court record in order to prepare and submit a clemency application?
The parties below are listed in the caption. In addition, the following appeared below as amici curiae on behalf of petitioner Jonathan J. Pollard: The National Association of Criminal Defense Lawyers; The American Civil Liberties Union of the National Capital Area; the American Association of Jewish Lawyers and Jurists; and various law professors and other distinguished individuals.
Page #
QUESTION PRESENTED................................................................................................................ i
THE PARTIES ii
TABLE OF CONTENTS................................................................................................................. iii
TABLE OF CITED AUTHORITIES................................................................................................. v
TABLE OF APPENDICES.............................................................................................................. vi
OPINIONS BELOW....................................................................................................................... vi
BASIS FOR JURISDICTION IN THIS COURT............................................................................. 1
STATEMENT OF THE CASE......................................................................................................... 1
Background....................................................................................................................................... 2
A. The Protective Order........................................................................................................ 2
B. New Counsel Enter the Case and Obtain Security Clearance............................................. 4
C. The Government’s Opposition to Executive Clemency....................................................... 4
D. The Access Motion........................................................................................................... 4
E. The Motion for Modification.............................................................................................. 6
F. The Bryant Letter.............................................................................................................. 7
G. The November 12, 2003 Order........................................................................................ 9
H. The Decision of the Court of Appeals................................................................................ 9
1. The Majority Opinion.............................................................................................. 10
2. The Dissent............................................................................................................. 10
I. The En Banc Petition....................................................................................................... 12
REASONS FOR GRANTING THE PETITION............................................................................ 12
Summary Of Argument.................................................................................................................... 12
THE COURT SHOULD GRANT CERTIORARI TO DEFINE THE SCOPE AND BREADTH OF THE DOCTRINE OF SEPARATION OF POWERS, PARTICULARLY WITH RESPECT TO THE RELATIONSHIP BETWEEN THE EXECUTIVE AND JUDICIAL BRANCHES 13
A. The Doctrine of Separation of Powers Does Not Mandate A Rigid and Absolute Separation of the Three Branches of Government 14
B. The Doctrine of Separation of Powers Requires a Pragmatic Evaluation of the Impact of the Exercise by the Court of Subject Matter Jurisdiction Over the Access Motion on the President’s Clemency Authority..................... 16
C. The Approach to the Separation of Powers Taken by the Majority Below Conflicts Directly With the Approach Taken by the Fourth, Fifth, Sixth and Ninth Circuits................................................................................................... 19
D. The Majority’s Approach Unwittingly Resulted in a Violation of the Doctrine of Separation of Powers 21
CONCLUSION 22
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
CERTIFICATE OF
SERVICE
Federal
Cases
Buckley v. Valeo,
424 U.S. 1 (1976)................................................................................................................ 15,
16
Duplantier v. U.S.,
606 F.2d 654 (5th Cir. 1979)...................................................................................................... 20
Humphrey’s Executor v.
United States,
295 U.S. 602 (1935).................................................................................................................. 14
Mistretta v. United States,
488 U.S. 361 (1988)............................................................................................................ 17,
18
Morrison v. Olson,
487 U.S. 654 (1988).................................................................................................................. 18
Nixon v. Administrator
of General Services,
433 U.S. 425 (1977)................................................................................................ 14,
15, 18, 19
United States ex. rel.
Kaloudis v. Shaughnessy,
180 F.2d 489 (2d Cir. 1950)...................................................................................................... 10
United States v. El-Sayegh,
131 F.3d 158 (D.C. Cir. 1997)................................................................................................... 17
United States v.
Moussaoui,
382 F.3d 453 (4th Cir. 2004), cert. denied, __ U.S. __,
125 S.Ct. 1670 (2005)............................................................................................................... 19
United States v. Nixon,
418 U.S. 683 (1974).................................................................................................................. 15
United States v.
Pollard,
2005 U.S. App. LEXIS 24393 (D.C. Cir. Nov. 10, 2005)...................................................... 1, 12
United States v.
Pollard,
290 F. Supp. 2d 165 (D.D.C. 2003)........................................................................................ vii,
9
United States v. Ray,
375 F.3d 980 (9th Cir. 2004)...................................................................................................... 20
United States v.
Williams,
15 F.3d 1356 (6th Cir.), cert. denied, 513 U.S. 966
(1994)........................................................ 20
State
Cases
28 U.S.C. § 1254(1)......................................................................................................................... 1
Statutes
and Rules
1 Joseph Story, Commentaries
on the Constitution
of the United States, Section 525 (M. Bigelow, 5th ed. 1905)....................................................... 15
The Federalist No. 47 (J. Cooke ed. 1961)..................................................................................... 14
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Appendix A —... Opinion of the United States Court of Appeals for the District of Columbia Circuit, decided July 22, 2005 |
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Appendix B —... Order of the United States District Court for the District of Columbia, filed November 12, 2003 |
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Appendix C —... Memorandum Order of the United States District Court for the District of Columbia dated and filed January 12, 2001 |
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Appendix D —... Order (per curiam) of the United States Court of Appeals for the District of Columbia Circuit, filed November 10, 2005 |
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The opinion of the United States Court of Appeals for the District of Columbia Circuit dated July 22, 2005 is reported at United States v. Pollard, 416 F.3d 48 (D.C. Cir. 2005) (Appendix A).
The Court of Appeals affirmed:
(a) A Memorandum Order of the U.S. District Court for the District of Columbia dated and filed January 12, 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.) (Appendix C) (A-440)[1]
(b) An Order of the U.S. District Court for the District of Columbia 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)
(c) An Order of the U.S. District Court for the District of Columbia, filed November 12, 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. This Order is reported at United States v. Pollard, 290 F. Supp. 2d 165 (D.D.C. 2003). (Appendix B) (A-866)
The Court of Appeals entered its opinion and order on July 22, 2005. Petitioner filed a timely petition for rehearing en banc, which was denied on November 10, 2005. See United States v. Pollard, 2005 U.S. App. LEXIS 24393 (D.C. Cir. Nov. 10, 2005) (per curiam).
This
Court has jurisdiction under 28 U.S.C. § 1254(1).
On July 22, 2005, a divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed, on separation of powers grounds, Orders of the United States District Court for the District of Columbia which denied the motion by petitioner Jonathan J. Pollard to allow his security-cleared counsel access to classified pre-sentencing memoranda and related materials 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) (the “Protective Order”) which explicitly contemplated future access by, inter alia, successor counsel with proper clearance, subject to court approval.
Petitioner 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 “Docket Materials”) were placed under seal by the district court pursuant to the Protective Order.
No subsequent representative of petitioner has seen the Docket Materials. Current counsel, who have the appropriate security clearance, seek access so that they can study the full record in order to prepare and submit an application for executive clemency. The Access Motion, made pursuant to the Protective Order, sought access to the Docket Materials in a secure Government facility, under strict conditions of confidentiality.
Because the Government below expressly conceded subject matter jurisdiction over the Access Motion, the issue was not briefed. However, at oral argument in the Court of Appeals, one member of the panel (Sentelle, C.J.) sua sponte questioned the court’s jurisdiction.
In a written opinion by a divided panel issued July 22, 2005, the majority (Sentelle and Henderson, C.JJ.) held that, due to the constitutional allocation of the clemency power to the President, the doctrine of separation of powers mandates that federal courts lack jurisdiction to allow access to their own dockets if the objective of the access is to enable counsel to prepare and submit an application for executive clemency. United States v. Pollard, 416 F.3d 48, 56-57 (D.C. Cir. 2005).
The dissent (Rogers, C.J.) found that a federal district court unquestionably has jurisdiction to allow access to its own docket, and that the separation of powers does not mandate a contrary result even if the objective of the access is to prepare a clemency application. The dissent reasoned that allowing access to its own 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. Id. at 58-61 (Rogers, J. dissenting).
On June 4, 1986, pursuant to a written Plea Agreement, petitioner pleaded guilty to conspiracy to commit espionage. Petitioner had delivered classified information to the State of 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 non-governmental 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 petitioner (A-471-533); a memorandum prepared by petitioner’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, petitioner and his then-attorney were allowed access to the Docket Materials. (A-391) However, since the sentencing nearly 19 years ago, no one representing petitioner has been allowed to see the Docket Materials. (A-296) A heavily redacted version is in the public record. (A-450-613)
On March 4, 1987, petitioner was sentenced to life in prison. (A-155) He has been incarcerated continuously since his arrest on November 21, 1985. (A-28) Petitioner is currently serving his twenty-first year of a life sentence.
On May 17, 2000, petitioner retained the undersigned (Eliot Lauer and Jacques Semmelman) as pro bono counsel.
Counsel applied for security clearance for the express and sole purpose of seeing the Docket Materials. On November 2, 2000, following a thorough investigation, the United States Department of Justice (“DOJ”) granted Mr. Lauer “Top Secret” security clearance.[2] Nevertheless, the DOJ thereafter refused to stipulate to access under the Protective Order. (A-294)
Seeking relief from his life sentence, petitioner has sought executive clemency on several occasions. Each application has been met with fierce opposition from the DOJ. (A-398-399, 403) The record below reflects that DOJ personnel have been unilaterally allowed access by the DOJ to copies of the sealed Docket Materials specifically in connection with the DOJ’s opposition to executive clemency. (A-754, 766, 769, 773)
On November 29, 2000, counsel for petitioner 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 Docket Materials (the “Access Motion”). (A-289)
In an affidavit, Mr. Lauer explained that, with then-President Clinton in the final weeks of his administration, petitioner’s counsel required access to the Docket Materials to represent petitioner in connection with a clemency application:
In order to represent [petitioner] 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)
The Access Motion was not a discovery motion. Counsel was only asking to see Docket Materials that had already been shown to petitioner and his prior counsel, and submitted to the Court prior to sentencing.
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 Docket Materials. (A-331) The Government stated that the Docket 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 Docket Materials were irrelevant to the clemency process. The Government asserted that there was no “need-to-know” because the Docket 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)
By Memorandum Order dated January 12, 2001, the district court (Johnson, J.) denied the Access Motion. (Appendix C) The court did not express any concern, based upon the separation of powers or otherwise, about its jurisdiction to adjudicate the Access Motion.
On January 19, 2001, counsel for petitioner filed a timely Motion for Reconsideration. (A-444) On August 7, 2001, the district court (Johnson, J.) issued an Order denying the Motion for Reconsideration. (A-635) Again, the court expressed no concern about the separation of powers or about its jurisdiction.
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, notwithstanding the security clearance bestowed on Mr. Lauer by the DOJ, Mr. Lauer was not eligible to see the Docket Materials because he did not have the proper security clearance, namely, Secure Compartmented Information (“SCI”). (A-333, 424, 438) The district court (Johnson, J.) accepted the Government’s representation as another basis for denying the Access Motion. (A-440) However, the representation turned out to be untrue.
In the aftermath of the Government’s representation to the district court that the DOJ had somehow granted defense counsel inadequate security clearance, defense counsel complained to the DOJ for having granted a security clearance now said to be inadequate for the sole purpose for which the clearance was sought, namely, to allow access to the Docket Materials. Counsel again requested that the DOJ accord the appropriate security clearance to enable counsel to have access to the Docket Materials. (A-659-660)
In response, by letter dated August 3, 2001 (the “August 3, 2001 Letter”), DOJ Court Security Officer Michael P. Macisso wrote:
Even though your background investigations will support SCI access, there are other criteria which must be met, including an SCI indoctrination briefing and a “need to know” determination from the Court or the government. . . . Absent a “need to know” ruling from the Court or the government, the Department of Justice will not be able to upgrade your clearance level or provide you access to this material.
(A-650) (emphasis added). The August 3, 2001 Letter thus conceded what the Government had effectively denied in Court—that the Government’s background investigation “will support SCI access,” and that (following a briefing) SCI access will be given automatically if counsel has a “need to know.” (A-650)
The Government never told the district court that any impediment to SCI clearance would be obviated upon determination of a “need-to-know.” To the contrary, the Government created the false impression that clearance would remain an insurmountable obstacle even if the Court found that counsel had a “need-to-know.” (A-333, 424)
On August 16, 2001, counsel for petitioner 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)
On September 10, 2001, Assistant Attorney General Daniel J. Bryant responded to a request by Congressman Anthony Weiner of New York for information concerning who, if anyone, had been afforded access by the DOJ to copies of the Docket Materials since petitioner’s sentencing in 1987. (A-663-664, 754) Mr. Bryant’s letter contained another 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 Docket 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 Docket 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 had 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 Docket 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 petitioner (as opposed to unrelated inspections for defense or intelligence purposes). At least one instance of DOJ access has been directly linked to the DOJ’s opposition to executive clemency in response to a request for clemency made by then-