Nearly four months after a federal judge ruled that the United States Parole Commission must explain why it has placed broad and severe parole restrictions on Jonathan Pollard, his attorneys have filed a brief with the same judge, saying that the Commission has failed to do so, and urging that it be ordered to lift the restrictions.
The “Supplemental Notice of Action issued by the Commission fails in every conceivable respect to address the clear mandate of this Court,” Pollard’s pro bono attorneys, Jacques Semmelman and Eliot Lauer, argue in new court documents that were obtained by Hamodia.
At a hearing last December, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York remanded the case back to the Parole Commission for “further development of the factual basis” behind their reasoning, and specifically to identify whether Pollard has, after all these years, retained “in his head” secret information that could endanger the public.
“The current record is insufficient to support the breadth of such conditions,” the judge noted, and urged the Commission to base its statement of reasons on contemporary findings of fact.
While acknowledging that Pollard’s original offense “involved covert means,” the judge added “that is as to a past fact, and it is unclear how that relates to protection of the public welfare or any other sentencing factor currently.”
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, in addition to those of any employer who chooses to hire him.
More than three months later, after prompting by Pollard’s lawyers, the Parole Commission sent them a four page “Notice of Action.” The latest filings are in response to this notice.
“The purported ‘justifications’ in the Supplemental Notice of Action are so arbitrary and illogical as to reveal what can only be bias and vindictiveness on the part of the Commission,” the lawyers state in their brief, which was filed in United States District Court for the Southern District of New York on Friday.
“The Commission ignored the Court,” Pollard’s lawyers assert. “The Commission’s cursory assertions fail to adequately answer the ‘fundamental issue’ … whether [Pollard] possesses secret information in his head that could pose a threat to national security … And, even assuming arguendo that the Commission had made that showing (it did not), the Supplemental Notice of Action then fails to provide any rational, logical connection between the alleged theoretical risk posed by Mr. Pollard and the Special Conditions imposed on him.”
In response to an inquiry by Hamodia, the assistant U.S. attorney representing the government in the case declined to comment on the filing.
A prominent Los Angeles-based attorney who specializes in post-conviction matters but is not affiliated with this specific case, had high praise for the brief.
“It is a very compelling argument,” said the attorney, who asked not to be named because of the sensitivity of the case. “It is clear that the government doesn’t have a legal position here. One has to suspect that whatever motivated them to keep Mr. Pollard in prison for three decades — for an offense whose median sentence was two to four years — is what is motivating these parole restrictions. One can only wonder if he would have passed this information to a different country, or if Mr. Pollard wouldn’t be Jewish, if this would be happening.”
Among the arguments made by the Parole Commission in defending the restriction is that Pollard is a flight risk, and cited a letter sent by Congressmen Jerrold Nadler and Eliot Engel to Attorney General Loretta E. Lynch on November 13, 2015 — a week before his actual release — urging the Department of Justice to give “fair consideration” to Jonathan Pollard’s expressed desire to reunite with his family in Israel after his release from prison.
“We believe that America’s interests and the interests of justice would be served if DOJ were to grant Jonathan Pollard’s request to reunite with his wife and move to Israel upon his release,” Nadler and Engel wrote.
“The Commission’s distorted reliance on the Nadler/Engel Letter is proof of how vindictive and biased this proceeding has become toward Mr. Pollard,” Pollard’s lawyers write. “It is grossly unfair — and unconstitutionally retaliatory — to suggest that because two United States Congressmen wrote to the Attorney General expressing their understanding that Mr. Pollard would want to move to Israel in a perfectly lawful manner, Mr. Pollard therefore demonstrates a propensity to unlawfully violate the terms of his release.”
They also point out that Pollard, who does not have a passport, fully understands that he would spend the rest of his life in prison if he were to attempt to board an airplane without permission. In their Notice of Action, the Parole Commission also cites a letter written almost 21 years ago by William O. Studeman, then acting director of the CIA, who advocated against the early release of Mr. Pollard in 1995, even though Pollard had not yet sought parole at that time.
“The Studeman Letter represents an ancient piece of history that has no bearing on the present proceeding,” Pollard’s attorneys argue, adding that “consideration of the antiquated Studeman letter would be directly inconsistent with Judge Forrest’s instruction that on remand, any justification based on the level of Mr. Pollard’s criminality ‘at a much earlier point in time’ be ‘brought forward to justify and support the very severe broad restrictions’ at issue.”
The Parole Commission also cites a recently written letter by James Clapper, director of National Intelligence, in which he says that “certain information compromised by Mr. Pollard remains currently and properly classified at the Top Secret and Secret levels,” and that the unauthorized disclosure of such information could reasonably be expected to cause either “exceptionally grave” or “serious” damage to national security.
Clapper acknowledges that last July, prior to Pollard’s parole hearing, the Intelligence Community (IC) was asked to assess whether there was a “reasonable probability” that Mr. Pollard would commit a new crime and “the IC concluded that it could not say that such a ‘reasonable probability’ existed.”
However, Clapper says that the Intelligence Community believes that “the imposition of special conditions would be an appropriate means to mitigate concerns of future unauthorized disclosures of classified information by Mr. Pollard.”
In response, the attorneys for Pollard say that the letter by Clapper does not provide any facts on which to base the Special Conditions.
“First, the letter fails to set forth facts, as Judge Forrest instructed the Commission to do, that Mr. Pollard has such 30-year-old classified information in his head. Even assuming some information is still ‘classified,’ as a practical matter, it is extremely unlikely that Mr. Pollard remembers, or could possibly remember, the details of 30-year-old information to an extent that it could be of any value to anyone. There is nothing before the Commission to indicate that Mr. Pollard ever memorized the documents he delivered, or that he could possibly remember any useable details 30 years later.
“Finally, and most significantly, neither the Clapper Letter nor anything else before the Commission explains how the Special Conditions would serve national security interests … it does not set forth the required findings of fact and thus does not offer any rational connection between the Special Conditions and the risk of disclosure.”
The lawyers point out that while Pollard’s GPS device allows the Probation Office to watch a blip of his location move around the Southern District of New York, it does nothing to physically prevent or deter him from having a conversation at a coffee shop, within the confines of his apartment, or in a public park.
“There simply is no relationship between the underlying offense and the need to monitor Mr. Pollard’s whereabouts, where the Commission’s supposed concern is a conversation that could theoretically occur anywhere. Similarly, subjecting Pollard to an arbitrary curfew would not ‘mitigate the risk of disclosure’ since Mr. Pollard’s ability to disclose supposedly confidential information could occur at any time of day. And the monitoring of Mr. Pollard’s computer use would not prevent him from disclosing the classified information in person, over the phone, or via regular mail…
The only effect of these Special Conditions “is to burden and stigmatize Mr. Pollard, and impair his ability to reintegrate into society,” his attorneys argue.
On Tuesday, the judge issued a written ruling giving the government until Friday, May 13, to respond, and Pollard’s attorneys until Tuesday, May 31, to submit counter-arguments.