Pollard Seeks Another Day in Court

Having been a member of the original Knesset lobby on behalf of Jonathan Pollard and his then wife, Ann Henderson, I have followed the case closlely and less so since 1985. I visited Jay in jail twice, in 1990 and 1993.

Jonathan Pollard's attorneys filed a Petition for Certiorari in US Supreme Court yesterday. In their brief they say:

We intend to present the President with a petition for executive clemency so that the miscarriage of justice can be brought to an end. In order for us to prepare and submit an effective petition for executive clemency, it is essential that we be afforded access to the materials submitted to the court (by both sides) shortly before Mr. Pollard was sentenced to life in prison in 1987, so that we can study and evaluate the full court record.

Approximately 40 pages of pre-sentencing docket materials were deemed classified and, pursuant to a protective order, were placed under seal by the court in 1987. Although the protective order contemplated future access by Mr. Pollard's successor counsel, no attorney or representative of Mr. Pollard has been allowed to see these materials since then. Even though we have the appropriate security clearance and a demonstrated "need to know," the U.S. Department of Justice (DOJ) refuses to allow us to see the documents. By contrast, the DOJ has repeatedly allowed its own personnel access to these very documents in order to bolster the DOJ's opposition to
executive clemency.

But what's the problem?

While disputing our right to have access to the sealed docket materials, the Government never challenged the court's jurisdiction to allow such access, and, to the contrary, expressly conceded jurisdiction in its brief to the Court of Appeals. Nevertheless, at oral argument in the Court of Appeals on March 15, 2005, one judge suddenly, on his own, (???) asserted that there was a serious and obvious jurisdictional issue. If so, it had entirely escaped the notice of two Chief Judges of the United States District Court for the District of Columbia (both of whom had addressed the access issue without expressing any jurisdictional concern), as well as a battery of senior Department of Justice attorneys, seven of whom had signed the Government's brief that readily conceded jurisdiction.

Nevertheless, in a written opinion issued July 22, 2005, two members of the
three-judge panel decided that the court lacks jurisdiction to allow Mr. Pollard's counsel access to the court docket materials. The stated rationale was that the doctrine of separation of powers somehow deprives a federal court of jurisdiction and control over its own docket materials if counsel seeks access to the materials in contemplation of an application for executive clemency. No court has ever held that, or anything close to that.

In a ten-page dissent, Judge Judith Rogers held that jurisdiction plainly exists, and that access to the court docket was expressly provided for in the district court's protective order pursuant to which the documents had been placed under seal.

The majority's ruling is an unprecedented and unsupportable distortion of the doctrine of separation of powers. We look to the Supreme Court to review the split decision of the Court of Appeals, and upon review, to reverse.

I do hope that this time, someone in the system will find the courage to right this wrong.