ANALYSIS: Ruling in Pollard Case Underscores Murky Area of U.S. Law

NEW YORK -

For many laymen, the notion that prosecutors would be permitted to submit to a judge secret filings that a defendant is prohibited from seeing seems to contradict the most elementary concepts of fairness and justice. For the government, it is a powerful tool in their arsenal, and one that the U.S. Attorney’s office is eager to use in the ongoing legal battle over Jonathan Pollard’s broad and unusually severe parole restrictions.

On Monday, as reported first in the daily Hamodia, a Federal Judge ruled that the U.S. government can submit a classified submission to the court in the Pollard case — albeit with some key conditions.

Pollard’s attorneys — who have security clearances specifically issued by the Department of Justice in connection with their representing him — strongly objected to the government being allowed to submit a secret filing that they would not be permitted to see.

Such classified filings, described in legalese as ex-parte, are very rare, and as the latest ruling in the Pollard case illustrates, there is very little legal precedent as to when the government can block the defense from seeing classified information they have security clearance for by simply claiming that the defendant has “no need to know.”

In a 20-page legal memorandum and ruling, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York acknowledged that “federal courts have addressed whether an individual ‘needs-to-know’ certain information surprisingly infrequently, and what little case law there is does not cohere around a single approach or even multiple well-defined competing approaches.”

While she referred to several previous cases, Judge Forrester based her ruling primarily on the 2006 case of Libby vs. United States of America. In that case, Lewis “Scooter” Libby, a close advisor to then-Vice President Dick Cheney, was charged with perjury and obstruction of justice regarding his role in leaking the identity of a covert CIA officer. As part of his fighting those charges, Libby sought to block the government from making ex-parte submissions.

The district court judge overseeing the case pointed out at that time that “courts routinely express their disfavor with ex-parte proceedings and permit such proceedings only in the rarest of circumstances.”

He also noted the scarce legal precedent for such cases, saying that “the parties have provided this Court with no case law explicitly discussing how the Court should proceed when the government makes an ex-parte filing under Section 4, or the role the defendant has, if any, in such proceedings. Nor has the Court’s research discovered such authority…. Thus, the Court must devise a creative solution without the aid of existing precedent.”

Judge Forrester modeled her ruling on the Libby case, deciding that that while the government will be permitted to submit a “an ex-parte filing addressing the types of classified information at issue alongside their public, unclassified filing,” the government will be required to “disclose to Pollard’s attorneys the ‘gist or substance’ of its submission … at a high level of generality that will not disclose classified information. This disclosure may either be contained in the publicly filed opposition to the renewed petition or filed separately under seal in a brief submission to which Pollard’s counsel will have access.”

Based on the Libby decision, the judge rejected the argument by the government that only the executive branch has the right to decide who has a “need to know” in regard to classified material that the defense has proper clearance for.

“Although [the] Executive Order… refers to an executive branch determination of what access is required, it is not clear, as a Constitutional and practical matter, that the executive branch’s responsibility for and expertise in matters of foreign policy and national security renders it better-equipped than other actors to determine what information a litigant or other individual needs to know. The view that a ‘need-to-know’ determination is not beyond the Court’s purview finds support in cases in which courts have passed on precisely that determination,” she wrote.

In her ruling she also addressed the government’s insistence that there is “no need” for Pollard’s attorneys to know the contents of this specific ex-parte filing, saying that the court will review this assertion.

“The Court’s review will be appropriately deferential to [the] executive [branches’] expertise, but will not be a rubber stamp for an agency decision. … The government must justify the necessity of any ex-parte filing by including an ex-parte declaration or affidavit from an intelligence community official describing why Pollard’s counsel does not need to know the information contained in the filing.”

A legal observer who has been following the Pollard case for many years and spoke on the condition of anonymity because of the sensitivity of the matter told Hamodia on Thursday night that what he found to be “alarming and disconcerting” was a footnote at the bottom of the sixth page of the ruling.

“Although the parties and the Court have at times suggested that the relevant inquiry is what information Pollard ‘carries in his head’ … the inquiry is more accurately stated as what information he was able to access and therefore may carry in his head,” Judge Forrester wrote.

“In essence, midway through this legal battle the judge has now backtracked from the very logical parameters she originally had laid out in order to accommodate the government.”

A prominent attorney who is not affiliated with the Pollard case but has read the latest ruling told Hamodia that he found the footnote disconcerting, but added that it was too early to draw any conclusions about the actual case.

“For that we have to wait and see what the Judge decides after the government explains in detail why Pollard’s lawyers should not be permitted to review the information,” said the lawyer, who asked not to be identified.

Pollard, who was released on parole in November after serving 30 years of an unprecedented life sentence in prison for passing classified information to Israel, a close U.S. ally, is battling unusually harsh restrictions which 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, in addition to those of any employer who chooses to hire him.

The legal observer said that the notion that Pollard’s lawyers don’t have a clear “need to know” the contents of filings being used to defend these restrictions is incredible.

“It sounds like something out of communist Russia. What the government is saying [is], you have no need to know why we are in effect keeping you under house arrest, and therefore you have no possibility to try to refute it. Just take our word for it.”

The Judge had previously given the government until June 10 to file its response, and Pollard’s lawyers, until June 30 to submit a rebuttal.

In light of her latest ruling, she indicated that if the government requested it, she “would likely grant a brief, one-week extension of the briefing schedule.”

On Tuesday, the government filed that request, and asked that it be given until June 17 to file its response.