In court papers filed late Thursday night, attorneys for Jonathan Pollard say that the decision by prosecutors not to file a classified submission to the court in the ongoing legal battle over Pollard’s broad and unusually severe parole restrictions — after asking and receiving permission from the court to do so — is an indication that they have no evidence with which to defend the need for such restrictions.
Pollard, who was released on parole in November after serving 30 years of an unprecedented life sentence for passing classified information to Israel, a close U.S. ally, is battling unusually harsh restrictions that include a 7:00 p.m. to 7:00 a.m. curfew; the unfettered monitoring and inspection of his computers, in addition to those of any employer who chooses to hire him; and the wearing of an electronic bracelet at all times for GPS tracking of his whereabouts.
The GPS monitoring system consists of a non-removable transmitter installed on his wrist, and a receiver that is plugged into an outlet in his residence. Whenever he moves outside the range of the receiver, the transmitter — which is three inches long and two inches wide — acts as a GPS tracker and monitors his location. Were Pollard to step out of his tiny studio apartment to daven with a minyan or get some fresh air on Shabbos or Yom Tov, the battery would begin to drain, forcing him to choose between violating Shabbos or facing re-arrest.
Judge Katherine B. Forrest had conditionally granted the government’s request to submit a classified filing, which Pollard’s legal team would not be permitted to see, described in legalese as “ex-parte.”
However, she had ruled that the government was required to disclose to Pollard’s attorneys the “gist or substance” of its secret submission, and that “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.”
In a surprising reversal, the government then instead submitted an unclassified declaration by the director of the Information Management Division within the Office of the Director of National Intelligence (ODNI).
“After exhaustive litigation over its ability to deny Mr. Pollard’s security-cleared counsel a right to look at the documents — and having prevailed on that issue, subject to the Court’s disclosure requirements — [the Parole Commission] now asks the Court to uphold the Special Conditions without reference to even a single item of specific intelligence data that Mr. Pollard could possibly remember after 31 years in prison,” Pollard’s pro bono attorneys, Jacques Semmelman and Eliot Lauer, say in their newest filing.
“Obviously, there is no such data. The Commission’s reversal is a clear admission that after reviewing its files, it came up with nothing that it could credibly show the Court, and which would withstand the scrutiny of petitioner’s counsel.”
The lawyers point out that if the court were presented specific examples of documents, Pollard could then demonstrate “that the information contained therein no longer poses a continuing danger, because, for example: it has already been made public, or has been acknowledged elsewhere to be outdated and useless for all purposes; because the document was never in fact accessed by Mr. Pollard; or is of such a nature that he could not possibly recall any meaningful details that would be of any value to anyone after 31 years. Moreover, the Commission offers no basis for concern that if in fact Mr. Pollard did retain anything in his head, he would disclose that material after 30 years in prison.”
Pollard’s attorneys add that “the Commission’s reversal also demonstrates that the only reason it imposed the onerous Special Conditions on Mr. Pollard is out of a vindictive and retaliatory motivation to punish Mr. Pollard for voicing his desire to live lawfully in Israel upon his release after 30 years in prison. Retaliation is not, however, a rational or lawful basis for special conditions of parole.”
Pollard’s legal team also rejects the claim of the Commission that the GPS condition is justified on the grounds that it could help protect the public from other crimes — i.e., further unauthorized disclosure of classified materials.
“The Commission has articulated no basis for its fear that Mr. Pollard will do so. For the past eight months, Mr. Pollard has been permitted to travel freely within the Southern District [of New York] without restraint or restriction as to who he can meet, and the Commission does not suggest even in passing that Mr. Pollard has in any way violated parole or communicated inappropriately with anyone. Similarly, [in prison] Mr. Pollard was permitted to spend 20 years in general population, talking freely with anyone he came across at FC Butner, indicating the insincerity of the Commission’s belief that Mr. Pollard will commit further crimes while on parole,” the lawyers write.
Pollard’s lawyers also stress that regardless of whether the documents at issue themselves are in fact properly classified, the Commission has failed to establish that Mr. Pollard himself possesses any “Secret” or “Top Secret” information, as he does not actually possess any documents in question.
“It does not automatically follow from the fact that a document is ‘currently and properly’ classified that an individual who has scanned that particular document 31 years ago would be able to disclose information adduced from it, which would be of any value or continuing danger today,” they state.
Among the numerous other points addressed by the attorneys is the fact that the latest government filing seeks to undermine Pollard’s argument that his religious rights are being violated, by asserting that he declined an offer of a “different GPS device in order to accommodate any concern that the original device might lose its charge during the Sabbath.”
In an accompanying affidavit, a Parole officer explains that the device offered has two batteries, each of which can last up to twenty-four hours.
The government did not address the fact that at the court hearing in December, Attorney Lauer had already stated that “changing a battery in a battery-operated device is an equal desecration of the Sabbath as is putting a plug into a socket. Observing this tenet is a fundamental tenet of Judaism. It’s several thousand years old and it is a core belief. It is a core part of the religious faith. So, the battery change offers absolutely no assistance in enabling Mr. Pollard to observe the tenets of his faith.”
Underscoring the argument that the government is actually confident that Pollard does not pose any security threat and does not have any secrets to share, the attorneys point out that as far back as 1998, the White House was prepared to release Pollard as part of a political exchange.
In 2014, President Obama was reportedly ready to send Pollard to Israel as part of a deal that would advance the peace process, but the deal fell apart after the other parties were unable to agree on the terms.
The attorneys point out that as Dennis Ross, Clinton’s Middle East coordinator, stated in an article he wrote on the subject, as early as 1998 there was no real governmental concern that Mr. Pollard would compromise U.S. intelligence, noting that if that were the case, “those responsible on our side should be fired. They had a responsibility to change the way we did business. Clearly, we altered our techniques and means when our security was compromised and we had suffered other security breaches and had to imprison other spies.”
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 that it is now abundantly clear that Pollard has been a bargaining chip for years.
“We now know that it wasn’t only Bill Clinton and years later John Kerry who were ready to include the release of Pollard as part of a peace deal. According to author and New York Times reporter Mark Landler, in November 2010, then-Secretary of State Hillary Clinton held an exhausting eight-hour bargaining session with Israeli Prime Minister Netanyahu over a one-time 90-day extension of the building freeze in Yehudah and Shomron. At that meeting, Clinton floated the release of Pollard, but it seems that Netanyahu was more interested in getting from the United States 20 F-35 stealth fighter jets, worth $3 billion. In any case, a few weeks later the deal collapsed,” the observer noted.
“One thing is clear: The American government apparently had no problem releasing Pollard six years ago in exchange for a relatively minor diplomatic ‘victory.’ At the same time this diplomatic event was occurring, there was a major push initiated to have the president commute his sentence. Nobody at the time could fathom Obama’s categorical refusal to even discuss the issue. Well, now we know the basis for Obama’s attitude — he obviously couldn’t commute Pollard’s sentence since he was using him as a bargaining chip with the Israelis!”
The lawyers pointed out that the ODNI declaration “fails to identify a single example of a document that Mr. Pollard actually compromised. Rather, it only repeatedly states that ‘certain information believed to have been compromised by Mr. Pollard remains currently and properly classified at the Top Secret and Secret levels’ and that as such, ‘any unauthorized disclosure of this information could risk harm to our national security.’
“But the Commission does not need to rely on its ‘belief,’ because the specific documents Mr. Pollard actually turned over to Israel are readily identifiable even on the basis of publicly available information,” they add.
“For example, a 1987 CIA damage assessment report of the Pollard case, which was declassified in 2012, reveals that government investigators were ‘assisted by Pollard in reconstructing the inventory of compromised material,’ and identified specific ‘categories and approximate numbers of compromised, published documents’ …. The degree of detail in the CIA Report establishes that the Commission should easily have been able to identify the specific documents Mr. Pollard actually accessed….
“The Commission surely has at its disposal an inventory of the classified documents Mr. Pollard passed to the Israeli government. It does not have to rely on the unsubstantiated ‘belief’ of the Intelligence Community in order to identify the specific documents Mr. Pollard compromised, such that it could evaluate whether such documents are still properly and currently classified. Because the ODNI Declaration does not establish that any of the documents actually compromised by Mr. Pollard remain ‘currently and properly classified,’ it fails to demonstrate that the information remains of intelligence value to anyone today,” the attorneys insist.
The 1987 CIA damage assessment, a copy of which was submitted to the court, tells of the types of information that Pollard gave the Israelis — as well as what he didn’t.
“The Israelis did not request or receive from Pollard intelligence concerning some of the most sensitive U.S. national-security resources. The Israelis never expressed interest in U.S. military activities, plans, capabilities, or equipment,” CIA report says.
Instead, the report indicates that the type of classified information that Pollard gave over was military and technical intelligence on the Arab states; the Soviet Union, which was the Arabs states’ primary arms supplier; and Pakistan.
Oral arguments in the case are scheduled to be heard on July 22.
Updated Tuesday, July 12, 2016 at 7:08 pm