NEW YORK - Six months after a federal judge ruled that the U.S. Parole Commission must explain why it has placed broad and severe parole restrictions on Jonathan Pollard, his attorneys argued Friday before the same judge that the Commission has failed to do so, and urged that it be ordered to lift the restrictions.
On Friday, in nearly two hours of oral arguments before Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York, Pollard attorney Eliot Lauer argued there is no rational basis for Pollard’s parole restrictions, which he said came from the Parole Commission’s vindictiveness against Pollard.
Pollard is currently required to wear a GPS monitoring system that 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.
In a previous filing, his lawyers have stressed that courts have found in other cases that “an opportunity to worship as a congregation by a substantial number of prisoners may be a basic religious experience and, therefore, a fundamental exercise of religion.”
During the arguments, Judge Forrest often seemed sympathetic to Lauer, repeatedly saying, “I hear your point,” but she questioned whether she had the authority to second-guess the Parole Commission. She noted that even if the court were to come to a different conclusion than the government over the parole restrictions, the “rational basis” test requires only that the Parole Commission’s restrictions be grounded in some rational basis, a low legal burden.
“As long as there is something there, even if there is a trail of breadcrumbs,” it would be enough to require the court to defer to the Parole Commission, said Judge Forrest.
Assistant U.S. Attorney Rebecca Tinio, who represented the government at the oral arguments, said that while “the government isn’t arguing that Pollard used a computer to commit his crimes,” the use of a computer is the ideal way in a contemporary society to transmit information. Furthermore, she argued that the Parole Commissioner is willing to work with Pollard to tailor the computer restrictions’ for a specific employer.
However, Lauer argued that the sort of computer monitoring being suggested by the Parole Commission would be extremely invasive, and that there is no rational basis for it, regardless of any “tailoring” for a specific employer.
Lauer pointed out that whereas there is nothing in the restrictions that would prevent Pollard from going to an internet café and sending mass emails, the Parole Commission has insisted on having the ability to monitor the computer of any employer who would hire Pollard, though the employer’s computers are easily traceable.
Lauer stressed the fact that when arguing for Pollard’s parole restrictions, the government declined to do an ex parte submission (a brief that Pollard’s security-cleared attorneys would not have access to, though the judge ruled that the government would have to provide Pollard’s attorneys with a summary of what is contained therein); and that the government even declined an in camera submission, (which public wouldn’t have access to but Pollard’s attorney’s would). Instead, said Lauer, the government submitted a “generic” and “copy and paste” declaration, which basically just describes the different types of intelligence info the government has that it believes Pollard to have compromised.
By declining to submit any secret proof, argued Lauer, the government has shown that it in fact has nothing to fear from Pollard, and that the severe parole restrictions are simply a vindictive measure by the government.
Judge Forrest said that she will probably issue a ruling within four weeks, and that she will inform the parties if there will be a delay.