Pollard v. U.S. Parole Comm'n
| Decision Date | 06 June 2016 |
| Docket Number | 15-cv-9131 (KBF) |
| Parties | JONATHAN J. POLLARD, Petitioner, v. UNITED STATES PAROLE COMMISSION; J. PATRICIA WILSON SMOOT, solely in her capacity as Chair of the United States Parole Commission; UNITED STATES PROBATION OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK; MICHAEL J. FITZPATRICK, solely in his capacity as Chief U.S. Probation Officer, Respondents. |
| Court | U.S. District Court — Southern District of New York |
In this action, petitioner Jonathan J. Pollard challenges certain special conditions imposed by respondent United States Parole Commission and implemented by respondent United States Probation Office for the Southern District of New York. (ECF Nos. 1 & 36.) This memorandum opinion & order addresses the proper role in this proceeding of evidence submitted by respondents ex parte for in camera review.
In 1984 and 1985, Pollard, then an Intelligence Research Specialist with the United States Navy, delivered classified information to the State of Israel. (ECF No. 1 at ¶ 1.) On June 4, 1986, pursuant to a written plea agreement, he pled guilty to one count of conspiracy to deliver national defense information to a foreign government, in violation of 18 U.S.C. § 794(c). (Id. at ¶ 21; ECF No. 3, Exh. B.) On March 4, 1987, he was sentenced to life in prison. (ECF No. 1 at ¶ 22.)
Under the parole statutes in place at the time Pollard pled guilty, he was entitled to be released on parole after serving thirty years unless the Parole Commission "determine[d] that he ha[d] seriously or frequently violated institution rules and regulations or that there [wa]s a reasonable probability that he w[ould] commit any Federal, State, or local crime." 18 U.S.C. § 4206(d) (1985). The Commission did not make such a determination, and on July 28, 2015 granted Pollard his parole, with a scheduled release date of November 20, 2015. (ECF No. 1 at ¶ 30; ECF No. 3, Exh. F.)
In the Notice of Action granting parole, the Commission also imposed conditions of release pursuant to its authority under 18 U.S.C. § 4209(a). That statute requires the Commission to impose certain conditions and authorizes it to "impose or modify other conditions of parole to the extent that such conditions are reasonably related to (1) the nature and circumstances of the offense; and (2) the history and characteristics of the parolee." The same statute further authorizes the Commission to "provide for such supervision and other limitations as are reasonable to protect the public welfare." Federal regulations require that special conditions of release be "reasonably related to the nature and circumstances of [the parolee's] offense or [the parolee's] history and characteristics, and at least one of" threepurposes: the need for individual deterrence; protecting the public from further crimes; or the parolee's need for training, treatment, or care. 28 C.F.R. § 2.40(b).
Pollard appealed the imposition of these requirements to the Parole Commission's National Appeals Board. (ECF No. 1 at ¶ 36.) The Board affirmed both of these conditions in a single-page decision. (ECF No. 3, Exh. G.) In so doing, the Board clarified that the computer monitoring condition applied "regardless of whether it is a personal communication device, home computer, or a computer you use for employment because, as a practical matter, the boundaries between personal and business computer use are blurred." (Id.)
Upon Pollard's release, he was required to visit the Probation Office for the Southern District. (ECF No. 8 at ¶ 3.) He signed an agreement requiring him to, among other things, respond promptly to his probation officer's calls and visits and obey, with limited exceptions, a 7:00 p.m. to 7:00 a.m. curfew. (Id. at ¶¶ 4 & 7.)
On November 20, 2015, the day Pollard was released from prison, he filed the original petition in this matter, seeking an order that respondents eliminate the GPS monitoring and computer monitoring conditions. (ECF No. 1.) The parties briefed the matter on an expedited basis, and the Court heard oral argument on December 14, 2015. (ECF No. 27.)
Ruling orally from the bench, the Court expressed its view that "the record of the Parole Commission's reasons ... is insufficient to support the nature and the breadth of the restrictions." (Id. at 12.) The Court therefore remanded the matter to the Commission to provide it with "an opportunity ... to more fully set forth its rationale." (Id.) The Court also identified what it took to be a fundamental question: "whether there is anything that Mr. Pollard can disclose that would endanger the public;" in other words, "is there any confidential government information left to disclose?" (Id.) The Court left the contested conditions in place during the remand. (Id. at 17.)
On remand, the Parole Commission received memoranda setting out Pollard's position. (ECF No. 38, Exhs. C & E.) The Commission also received, among other things, a letter from Director of National Intelligence James R. Clapper. (Id., Exh. D.) Clapper's letter explained, among other things, that the United StatesIntelligence Community had "confirmed that certain information compromised by Mr. Pollard remains currently and properly classified at the Top Secret and Secret levels." (Id.)
On March 2, 2016, the Parole Commission published a four-page, single-spaced Notice of Action relating to Pollard's conditions. (Id., Exh. G.) The Commission upheld both the GPS monitoring and computer monitoring conditions and provided additional reasoning not present in its original July 2015 Notice of Action. The Commission noted that Pollard "compromised information that remains classified at the Top Secret and Secret levels and future unauthorized disclosure of the information could risk harm to the national security of the United States." (Id. at 2.)
On April 8, 2016, Pollard moved to re-open the case and renew his petition. (ECF No. 36.) The Court re-opened the case and set a briefing schedule. (ECF Nos. 40 & 41.) As part of that order, the Court noted that "respondents may deem it appropriate to address whether information at issue remains 'Secret' or 'Top Secret.'" (ECF No. 40 at 1.) The Court therefore directed the parties to "confer as to whether (1) the Court can or should resolve such factual disputes; (2) the standard that would apply; and (3) whether respondents should/must support their position on this motion with reference - in camera - to specific examples of 'Secret' or 'Top Secret' information deemed to be at risk." (Id. at 1-2.)
On May 6, 2016, respondents moved for an extension of time to oppose Pollard's renewed petition. (ECF No. 44.) The letter also expressed an "intention tosupport [respondents'] response to the renewed Petition with a classified submission for the Court's ex parte and in camera review." (Id. at 1.) Pollard filed a letter on May 9 objecting to the proposed use of ex parte submissions. (ECF No. 47.) Respondents responded to Pollard's letter on May 10, which drew a further opposition from Pollard the same day. (ECF Nos. 48 & 49.) The Court granted respondents' request for an extension of time; their opposition is now due June 10, 2016, with Pollard's reply briefing due June 30, 2016. (ECF No. 50.)
The possible need to consider ex parte submissions in this case stems from the Court's obligation to provide a limited but careful review of the Parole Commission's special conditions decision. One important factor in evaluating those conditions is the nature, value, and continuing danger of any information Pollard accessed before his incarceration.2 There are competing entries in the record on this point: Pollard points to declarations from Robert C. McFarlane, the former U.S. National Security Advisor, and former senator Dennis DeConcini, a former member of the Senate Intelligence Committee, both of whom concluded that any information Pollard could still recall would be of no value, while respondents note a letter from James R. Clapper, the Director of National Intelligence, in which Clapper affirmed that the information remained properly classified. (ECF Nos. 4, Exhs. C & D; 38, Exh. D.) Although it might be possible to resolve the question solely on these publicdeclarations, the Court anticipates that a limited review of the materials actually at issue may bring further clarification to these proceedings. Because those materials are classified national security documents (indeed, that is their relevance to this proceeding), their distribution must be carefully limited.
Pollard's objections to respondents' proposed ex parte submissions fall into two principal categories: an argument that such submissions are inconsistent with Pollard's right to due process, and an argument that Pollard's counsel are entitled to access the information under the standard set forth in Executive Order 13526. The Court considers both of these arguments separately.
Pollard...
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