A three-judge panel of the U.S. Court of Appeals for the Second Circuit in Manhattan heard oral arguments on Wednesday, as they weighed Jonathan Pollard’s appeal of a lower-court judge’s rejection of his habeus corpus petition seeking the removal of broad and severe parole restrictions.
Pollard, who was released from prison last November after serving an unprecedented 30 years for passing classified information to an ally, Israel, 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 Manhattan 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.
The parole restrictions also include a “curfew” that puts him under house arrest between 7:00 p.m. and 7:00 a.m. During the daytime, he is only permitted to travel in parts of Manhattan, and is even prohibited from visiting nearby Brooklyn. The restrictions also include the unfettered monitoring and inspection of his computers, as well as those of any employer who chooses to hire him, which has prevented him from being able to gain employment.
At oral arguments Wednesday before Judges Reena Raggi, Susan L. Carney and Lewis A. Kaplan, Lauer argued that Pollard does not retain in his head any classified information that is still relevant more than 30 years later. Moreover, even in briefs submitted to the court by the intelligence community, the government has never specified any sort of information or details that Pollard may remember all these decades later.
In response to a judge’s question that the burden of proof should be on Pollard rather than on the government, Lauer replied that the Parole Commission has the obligation to substantiate its claim.
In what some observers considered to be a bombshell, for the first time since his arrest more than thirty years ago an attorney representing Pollard revealed in open court an actual example of the material he passed to the Israelis.
Lauer cited a photo of an Iraqi nuclear facility taken in 1981 that Pollard passed to Israel in 1984: If Pollard still had the actual photo in his possession, said Lauer, perhaps an expert could discern the method with which it was taken. But without the actual photo, simply knowing that such a picture existed would be of no use 33 years later.
The fact that Pollard does not have in his possession any physical documents or images – nor had he had them for more than three decades – is not being contested.
In response to a judge’s question about whether the names of intelligence sources could be remembered or revealed, Lauer firmly asserted that “no agents were compromised” by Pollard, as the data that Pollard passed to Israel – information the U.S. collected about other countries that was relevant to Israel’s national security, and despite a bilateral agreement, the U.S. had not shared with Israel – did not contain any information in regard to names and identities of American agents.
Early on in the arguments, Judge Ragee asked Lauer why the government should take a chance in regard to the possibility that Pollard may still remember something. The judge pointed out that applicable burden is only to prove a rational basis, not a preponderance of the evidence.
Indeed, the burden is only a “rational basis,” Lauer replied, but it must be a “genuine rational basis.”
“When you look at the findings of fact by the Parole Commission, there is nothing genuine,” he said. The government could have cited “specific documents that are the type that could reasonably be retained” in Pollard’s mind all these years later, but didn’t.
Assistant U.S. Attorney Rebecca Tinio, who represented the government at the oral arguments, argued that Judge Forrest of the District Court correctly found that “the Parole Commission has broad discretion” to apply restrictions “to mitigate the risk associated with his release.”
She said that while Lauer’s focus had only been on the risk of public disclosure, there are also other factors that the Parole Commission takes into account, such as deterrence, the nature and circumstances of the crime, and the parolee’s own rehabilitation.
When a judge asked why the curfew was necessary, considering that Pollard is being monitored by GPS to prevent him from fleeing, Tinio replied that the two go hand in hand: having the curfew helps the GPS monitoring.
In his rebuttal, Lauer urged the court that it “has an opportunity to strip away at the facade” of the Parole Commission’s findings. He said that the Parole Commission “unmasked” itself by using a letter by Congressmen Eliot Engel and Jerrold Nadler asking for lawful permission for Pollard to be allowed to go to Israel, as proof that Pollard is a flight risk.
In conclusion, Lauer stressed that Pollard is permitted to speak to whomever he wishes. Pollard “can walk the streets of Manhattan and talk to whomever he wants, he can write and mail a letter through the old-fashioned mail to anyone, and he can pick up a telephone and talk to anyone in the world,” said Lauer. Therefore, the restrictions on his computer access serve no purpose except “to embarrass him and prevent him from getting a white-collar job.”
Pollard, accompanied by his wife, Mrs. Esther Pollard, attended the hearing, which was argued by his attorney Eliot Lauer but, per appellate-court protocol, sat with the audience.
The court is expected to issue a written ruling, but did not indicate a timetable for a decision.