A Federal Judge ruled on Monday that the U.S. government can submit a classified, ex-parte submission to the court in the legal battle over Jonathan Pollard’s broad and unusually severe parole restrictions – 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.
In a twenty-page legal memorandum and ruling, Judge Katherine B. Forrest of the United States District Court for the Southern District of New York, found 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.”
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 dramatically backtracked from the very logical parameters she originally had laid out in order to accommodate the government. This is a very troublesome development for the Pollard legal team.”
In her ruling she also addressed the government’s insistence that there is “no need” for Pollard’s attorneys to know the contents of the 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.”
Pollard, who was released on parole in November, after serving thirty 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,” what are 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 no possibility to try to refute it. Just take our word for it.”
The Judge had previously given the government until June 10th 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.”