NEW YORK - A federal judge ruled Monday that the United States Parole Commission must explain why it has placed such broad and severe parole restrictions on Jonathan Pollard.
These restrictions include a 7:00 p.m. to 7:00 a.m. curfew, the wearing of an electronic bracelet at all times for GPS tracking of his whereabouts, which needs to be recharged on Shabbos, as well as the unfettered monitoring and inspection of his computers, as well as those of any employer who chooses to hire him.
Judge Katherine B. Forrest of the United States District Court for the Southern District of New York declined to vacate any of the restrictions at this time, and instead remanded the case back to the Parole Commission for “further development of the factual basis” behind their reasoning.
“The current record is insufficient to support the breadth of such conditions,” the Judge noted, but added that until the Commission is given the opportunity to give a full accounting of why they placed such restrictions the court “would not second- guess” the Parole Commission.
The judge stated that to a large degree, the legitimacy of these restrictions depends on whether or not Pollard is “carrying in his head” any secrets that would endanger national security, and urged the Parole Commission to directly address this question.
In response to the Judge’s remarks, Assistant U.S. Attorney Rebecca Tinio, who represented the government, asserted that most of the information Pollard had and passed along to Israel 30 years ago remains top secret, and according to an Executive Order the release of top secret information could “gravely harm national security.”
She did not address the fact that when Pollard was released on parole, the Commission determined that there is no reasonable probability that Mr. Pollard will engage in further criminal activity.
Tinio also did not respond to the argument made by Pollard’s attorneys — and which was referred to by the judge in her remarks — that even if one would presume that Pollard did remember any such classified information, and it would be of any use to anyone today, neither the GPS tracking, the night curfew or the computer monitoring requirement would prevent him from communicating this information orally to a visitor in his apartment.
During oral arguments and in legal memorandum submitted to the court, Pollard’s pro-bono attorney, Eliot Lauer, pointed out that throughout the parole process, the Commission did attempt to rebut the declarations of former U.S. National Security Advisor Robert McFarlane and former Senate Intelligence Committee member Dennis DeConcini, who have personal knowledge of the Pollard case, and who each state that whatever information Mr. Pollard might still recall after 30 years is “of no value to anyone today.”
Judge Forrest acknowledged that in his legal pleading, Pollard stated that the wearing of the GPS transmitter — which he must wear seven days a week and which must be charged daily — conflicts with shemiras Shabbos, but ruled that she could not weigh whether his religious liberties were being violated until the Commission submits its explanation for these restrictions.
On Sunday, the prosecutor who is representing the Parole Commission and the Probation office in this case submitted a declaration to the court, stating that “in an attempt to reduce or eliminate” Pollard’s concerns about charging the monitoring device on the Sabbath, the U.S. Probation Office has ordered a new device that comes with two batteries, each of which can hold a twenty-hour charge.
“If, for example, Petitioner fully charges both batteries before the Sabbath, he should be able to simply switch the batteries if one expires,” the declaration states.
During oral arguments Lauer explained that the changing of a battery on Shabbos is also prohibited according to Jewish law, and this would not alleviate the problem in any way.
Pollard, accompanied by his wife, Esther, attended the proceedings but did not speak to reporters.