Hon. George N. Leighton: NATIONAL SECURITY? (The Pollard Case)
November 5, 2002 - [Originally distributed by IMRA]
In the ongoing national debate over the appropriate balance between
preserving civil liberties and protecting national security, it is generally
taken for granted that the government's invocation of "national security" is
made in good faith. Indeed, in the context of combating international
terrorism, the need for enhanced protection of national security is without
But there have been instances in which government officials have invoked
"national security" inappropriately, as an excuse for curtailing an
individual's rights even where national security was not at risk.
A troubling example of disingenuous government invocation of "national
security" occurred recently in the case of Jonathan Pollard, the American
who delivered classified information to Israel. On November 21, 2002, Mr.
Pollard will begin serving his eighteenth year in prison. With his new
attorneys, Eliot Lauer and Jacques Semmelman, Mr. Pollard is battling to
vacate what many believe to be an unjust sentence of life in prison.
At the time Mr. Pollard was sentenced in March of 1987, the court placed
under seal approximately forty pages of material filed in the court's
docket. These included portions of a declaration by then-Secretary of
Defense Caspar Weinberger, and portions of pre-sentencing memoranda
submitted to the court by the government as well as by the defense. The
materials were sealed because the government said they contained classified
information, some of which could affect national security if disclosed
The sealing was achieved through the court's issuance of a "protective
order," which provided a procedure whereby future attorneys for Mr. Pollard
might seek and obtain access to the documents.
Mr. Pollard and his attorney at the time were permitted to read the sealed
pages before sentencing. However, despite the provision in the protective
order for future access, no attorney representing Mr. Pollard has been
permitted to see these pages since 1987.
While this denial of access has severely hampered the efforts of Mr. Pollard
's new attorneys to secure justice for their client, it has proved
convenient for his adversaries. For years, adversaries have exploited the
sealed pages to generate political opposition to relief for Mr. Pollard by
spreading, in the press, rumors and outright falsehoods. Since the
accusations floated in the media are nowhere to be found in the open court
file, they would either be substantiated in the sealed pages, or not at all.
As no one representing Mr. Pollard has been allowed access to the sealed
pages, Mr. Pollard's adversaries have had unbridled license to spread
falsehoods with virtually no risk of contradiction.
Mr. Pollard's attorneys must see the sealed pages so that, at a minimum,
they can credibly challenge the rumors and falsehoods that continue to be
disseminated, to their client's enormous detriment.
Mr. Pollard's lawyers are not engaging in a "fishing expedition," nor are
they attempting to gain access to confidential government files which have
never been shown to defense counsel. Mr. Pollard's lawyers are simply
asking to see the very documents that Mr. Pollard and his original lawyer
saw (and, in some instances, even authored) in 1987.
In accordance with the protective order, Mr. Pollard's current attorneys
applied for the appropriate security clearances from the U.S. Department of
Justice (DOJ) for the purpose of gaining access to the sealed pages. The
DOJ thoroughly investigated the attorneys and then issued them "top secret"
security clearances, telling them this was the clearance level required to
see the sealed pages. However, when the security-cleared attorneys asked
the DOJ for access to the sealed pages, the DOJ refused, claiming the
attorneys have no "need to know" what is in their client's court file.
The attorneys filed a federal court motion asking for access to the
documents. Recognizing the danger in allowing the government unilaterally
to block security-cleared defense counsel from seeing their client's court
records, the D.C. area chapter of the American Civil Liberties Union
submitted an amicus curiae brief in support of access.
The DOJ vigorously opposed the motion, on what purported to be two separate
grounds: one, that allowing access could endanger national security because
the attorneys' "top secret" security clearances (the level selected by the
DOJ, not the attorneys) were inadequate to allow them access to these
materials, which carry a higher "SCI" (sensitive compartmented information)
classification; two, that Mr. Pollard's lawyers have no "need to know" what
is in their client's court file. The court accepted both of the government'
s arguments, and denied access.
The lawyers asked the court for reconsideration. They argued that even if
some of the materials were highly sensitive, surely there were other
portions that were less so. The lawyers asked the court at least to
distinguish between the truly sensitive portions and the less sensitive
portions, and allow access to the latter. The government did not respond to
the motion for reconsideration. The court denied it without opinion.
Rep. Anthony D. Weiner (D-N.Y.), took an interest in the case and in the
civil liberties issues implicated by the government's conduct. He wrote to
the DOJ, asking it to identify those portions of the sealed materials that
have classifications lower than SCI. The DOJ wrote back and evasively told
the Congressman that the materials are classified "up to and including" SCI.
The DOJ ignored the Congressman's request to identify the portions that had
lower classifications, and, after much back-and-forth, finally told the
Congressman to take up the inquiry with the Department of Defense.
Months after Congressman Weiner first intervened, the lawyers received a
letter from the DOJ admitting that the government's investigation into the
attorneys' backgrounds "would support SCI access" merely upon a showing of a
"need to know." In other words, the government finally admitted that its
only objection to access was lack of a "need to know," and that, contrary to
what the government had told the court, allowing these attorneys access to
the sealed pages would not pose any danger to national security.
Mr. Pollard's attorneys immediately asked the court to modify its order,
which had been based upon the government's earlier misrepresentation that
they pose a danger to national security. The request is pending.
The government's conduct in this case is highly disturbing. Lawyers have an
unquestionable "need to know" what is in their client's court docket. How
else can they represent their client? When the government takes the
position that a lawyer has no need to know what is in his or her client's
court docket, all Americans have cause for concern.
Even more troubling is the government's misrepresentation to the court
regarding national security. The government had conclusively determined
that these lawyers pose no danger to national security. But the government
misrepresented the truth when it told the court otherwise, so as to obtain
the ruling it desired. When the government misrepresents the facts in a
court of law, there is cause for all of us to be concerned.
The Attorney General has the authority to grant access to the sealed pages.
Congressman Weiner and other elected officials have urged Attorney General
John Ashcroft to make the sealed pages available to Mr. Pollard's attorneys.
To date, these initiatives have been met with government stonewalling. Mr.
Ashcroft should intervene and should ensure that the materials are made
available to counsel in a secure setting.
When government officials invoke "national security" as justification for
infringing on someone's civil liberties, we must critically examine the
facts and circumstances of the case.
Unlike the real and immediate threat posed by international terrorism, the
alleged threat posed by allowing Mr. Pollard's attorneys access to the
sealed pages of his fifteen-year old court file is, as the government has
now effectively conceded, non-existent.
By its conduct in that case, the government has demonstrated that its
invocation of "national security" is not always made in good faith. If this
kind of inappropriate government action remains unchallenged, we will see
our valuable civil liberties eroded.
In balancing civil liberties against government needs, we must ensure that
the government's stated needs-including its need to protect national
security-are genuinely at stake, and that the "national security" label is
not being abused.
Hon. George N. Leighton served as a United States District Judge for the
Northern District of Illinois from 1976 to 1987. He was a Judge of the
Circuit Court of Cook County, Illinois from 1964 to 1969, and a Justice of
the Illinois Appellate Court from 1969 to 1976. He is a graduate of Howard
University and Harvard Law School. Prior to his election to the Illinois
bench, Judge Leighton was a prominent trial lawyer in Chicago, with a
practice that revolved largely around criminal and constitutional
litigation. During the 1950s and early 1960s, Judge Leighton was active in
the civil rights and civil liberties movements, and handled important cases
that established significant principles of law. Among many other
distinctions, Judge Leighton has served as President of the Chicago branch
of the NAACP, and as Chairman of the Bill of Rights Committee of the
Illinois State Bar Association. He has been a member of the Illinois
Division of the American Civil Liberties Union. Since 1965, he has been a
member of the adjunct faculty at the John Marshall Law School in Chicago.
Judge Leighton is currently Of Counsel to the firm of Earl L. Neal &
Associates in Chicago.
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