arbitrary discretion the three conditions here workplace computer monitoring twenty four hour g p s monitoring and the curfew all purportedly are based on the supposed possibility that poll retain in his head secret details from documents access thirty two and thirty three years ago which were created thirty two or more years ago and th intentionally disclosed such details if the impact retains them since polit does not possess any documents the district court observed that the risk of possible disclosure is based exclusively on the extent to which if any pollard may carry in his head seeker details after thirty two years the government fought for and obtained the right to submit x party in camera examples of accessed by pollard and then in a one hundred eighty degree turn the government chose instead to submit the declaration of of ms hudson and instead of referring to documents actually access by pollard hudson states ten times in the declaration that various still confidential documents are believed to have been compromised by pollard this was not an oversight neither the government nor the commission has ever offered any evidence any factual basis that it least some of the details accessed by pollard thirty two and thirty three years ago are of the type that a person could be expected to remember after thirty two year years and everything depends on whether in fact there's a reasonable possibility over attention this two is no the issue litigated before the district court was to what extent they retain details after thirty two years hudson says nothing about what poet may conceivably retain convicted so the fact that he had access confidential documents is not really an issue and there's an interest in his not being able to do so further if your if your argument is that look nobody could retain this information this far after the fact raises the burden on that point yours the burden on the commission to have some factual and i'm suggesting it's met by the fact that he has he had access to an disclose confidential documents and those documents at least some of them still retain classified status so it's really the defense that is coming up with the argument oh well this is material that no one could retain after thirty two years and you're saying now they have to disprove your assertion and i'm not sure i understand that well  believe they have the obligation to have some factual basis to say that he specifically accessed documents that are still confidential and are of the type that could be retained let me give you two examples and why we vigorously asked the court to allow security clear counsel because we have we obtained the highest level of security clearance for this case we asked the court to allow us to see the examples that they would submit x party for example if pollock had accessed a photograph of an iraqi military installation that was taken by satellite let's say in one thousand nine hundred one and he access this and gave it to the israelis in hundred eighty four while it's true objectively as hudson says looking at documents of this type and she doesn't specifically connect any document actually to pollard but looking at documents of this type one might be able to discern some of the methods used by the united states in taking that photograph but thirty two years ago pollard without the photograph simply recounting some generalized details of that was a facility is not in any position to disclose those details similarly if one of the documents accessed was for example of four single space full four pages of single spaced computer code and he gave it to the israelis and they copied it thirty two years later no one could retain any meaningful detail to disclose what about the names of people who've provided human intelligence there was no there was no there was no information of that sort and the government the government if you look at the hudson declaration they they do not say that he obtained names what they say is somebody looking at these kinds of documents again not directly connected to pollard could possibly discern from looking at the information the source the human source or the the mechanical source of the data our point is very simple though given that he had this kind of material in his thirty years ago thirty two years ago why isn't the government's obligation to take the chance that he's forgotten something but it will pop into his hand henri does retain a little whatever i mean the operation of his model does not seem to me to be something that the government either has to prove more that it needs to take a chance on meet the condition has to be rational it doesn't have to be shown to be you know supported by a preponderance of the evidence or any other burden of proof it has to be rational we know we had possession of these items what he remembers or doesn't remember what links he drew or didn't draw doesn't seem to me to be something we need to explore it has to be rational but it also has to be genuine and the point that we've made in the papers is that when you look at the notice of action when you look at look at what they did when you look at how they tried to justify before judge forrest why they said he still has possesses a risk you will see that there is nothing genuine the fact that the government could have instead of offering the hudson declaration in its form could have had the hudson or someone else from the intelligence community put in a the say a similar declaration which had two components that are missing one i have looked at specific documents that pollard did access and based on my experience i can say that at least in my opinion as a member of the intelligence community these documents and the details in them even though they are thirty two or thirty five years old or of the type that pollard reasonably could recall they were we were litigating this for a year before judge forrest these they specifically asked for the right to do this x party then they pulled back and that has to that has to suggest and i think it does suggest that what you had here is not a genuinely rational basis of a risk of disclosure but pretextual the government went out of its way to jerry rig and try to find some basis and when you look at the hudson declaration she doesn't connect the documents to pol she doesn't nor does any of her colleagues say this is of the type that he could retain  prole conditions now there's no question that mr pollard is an extraordinary and very unusual proly at the time of his crime victim statements and damage assessments describe the enormous harm to the united states that his espionage activity caused and he was sentenced to the maximum term of imprisonment a life sentence and although mr pollard is now on parole he continues today to serve that life sentence he is still under the custody and control of  general and he still under the jurisdiction of the product commission the special conditions are reasonable means to monitor and supervise mr pollard to minimize mitigate risks associated with his release  society and to facilitate his otherwise comparatively not restrictive release into the community the commission had a rational basis in the record to impose each of the prole commissions and i'd like to review some of the most critical pieces of evidence but i'd like to start first by responding to what my opponent focused on from as the entirety of his argument this morning on mr lauer said that all of the conditions are based on the public harm factor the possible risk of disclosure that is not correct the notice of action issued by the pool commission shows that there were five factors there elucidated in the statute and the regulations only one of which is the need to protect the public from harm relating to a possible disclosure of classified information and those would be the nature and circumstances of mr pollitz offense that mr pollin its own history and characteristics deterrence a future conduct  yes the need to protect the public from harm and also mr pollard's own rehabilitation and so mr lowers focus on only one of those factors is misleading here be any need to engage in quite this kind of monitoring but for the risk of harm i thought the other factors why he was thought to be still a potential disclosure of this information and someone who would move out of the country though the other factors played into that but i thought it was the risk of harm he continued to pose to united states intelligence that informed the electronic monitoring i think your honor that in fact multiple factors inform the monitoring for example the fact that mr pollard could be a flight risk again human tains he remains in the custody and control of the attorney general and the proof commissions specifically said the need to deter him from fleeing the country which is rationally based in the record was a reason for his g p s monitoring and curfew along with the need to comply with his exclusion zones mr pollard has several exclusion zones which he has never challenge he's required to stay away from certain areas and the pro commission referred to that need as a reason for the monitoring as well as you from your failure to want to discuss risk of harm that you don't think that supports this that we have to look these other factors not at all your honor and tell us why absolutely i think you know your honor expressed it very well when you said that the prole commission to the extent that the burden could be construed to be on us to justify his risk of current harm has been met he did commit this very serious and the clapper letter in no equivocal terms in unequivocal terms says that a real review of specific documents and information had been done and that information that he compromised remains properly classified today at the into a curfew what you both if you know where you solved over the two go hand in hand or on and i believe in the u s probation offices declaration they say that curfew actually is very common especially when people have location monitoring when someone is subject to location monitoring the curfew helps establish a baseline we know where they're supposed to be between mr pollard's case most days between seven pm and seven am he's supposed to be at home now the location monitoring equipment is programmed to incorporate that if he leaves his residence during the time he's supposed to be there an alarm goes off in an alert is sent the same thing happens if he goes into one of his exclusion zones and also frankly just helps the probation office monitor and supervise him it it kind of limits the hours of the day when he might be out and about so that to really go hand in hand thank you for the question and going back to mr lauer his statements and suggestions about the hudson declaration which was issued by another person from the office of the director of national intelligence the proof commission in the government did not rely on the declaration and that's true the prole commission had before it only the clapper letter which i've already discussed as being sufficient to meet whatever burden the pro commission may have  in april of two thousand and sixteen and the district court issued an order that suggested that the court was very interested in the public harm element and suggested that the perhaps the government white might want to provide the district court in camera with specific examples of classified information and you know there was some litigation about that in letters that resulted in a june order and the government although the government did not feel it needed to rely on an additional declaration was willing to provide that information with specific reference to classified information in an ex parte setting and the government made that very clear in its letters and now in the course of the litigation and mr lauer referred to for example the access of counsel issue it became less clear that if the government provided that information it would be permitted to remain in an ex parte situation and because the ex parte nature of what the government was willing to disclose was perhaps in some risk we did decide especially because you know this information and not been before the i apologize the government's view was that it did not need to rely on specific reference to classified information because  suggestions the hudson declaration does make reference to another specific review of actual documents in addition to the human intelligence described in the hudson declaration as your honor referred to as also signals intelligence geospatial intelligence referred to in the hudson declaration with reference to specific documents that had been reviewed by the intelligence community and you know this declaration is subject to presumption of regularity and t here's absolutely no reason in the record to question the genuineness of the declaration or the motives of the government's but as i've mentioned before that is only one of the five factors and it's really only one piece of the record evidence that the prole commission relied on and briefly with the time i have remaining with respect to one of the statutory factors the nature and circumstances of the offense the proclamation properly examined that looked at the pollard had a one third parole hearing and admiral student min issued provided this letter to oppose the grant of one third prole at that point so that was nine hundred ninety five ten years after mr pollard had been arrested ten years after he had  last seen a classified document and at that point and will students said mr pollard has an excellent memory he remembers information he's tried to disclose technical information about sources methods in his prison correspondence 's actually asking the court to assume that mr pollard forgot that forgot information that we know he retained at least ten years after his arrest unless there are no further i was there for the questions in the panel the government would just conclude by saying that the court should affirm the judgment of the district court it's the regulations narrow the statutory conditions what it all boils down to is they need to have at least  factual finding that there is a need to deter criminal conduct or protection of the public from further crime and that all boils down to whether he retains any information as to flight risk and  i think this court has the opportunity to strip away the facade and to see whether these conditions are genuinely needed supposedly he's a flight risk who might flee to israel of course israel has all of the information that pollard provided to the israeli agents in eighty four and eighty five but at the commission's true motives unmasked when they sharply accuse pollard of being a flight risk because two congressman wrote the attorney general and ask for permission for pollard the have permission lawfully to move to israel they say pollard is a dissembler and they say he has a recent propensity to dissemble because at the mandatory parole hearing he represented that he had employment and then counsel advised pollard not to take that employment after the conditions for computer monitoring were imposed because counsel felt it was unfair to the prospective employer and whether the commission agrees with counsel's recommendation or not that says nothing about policy integrity there's absolutely no dissembling because the written employment agreement was provided to the commission at the mandatory prole hearing but the charge  flight risk the charge of dissembling take the student letter of the student letter twenty years ago is an absolutely false document because what it's a cynical document because sued him in a of fourteen times writing potentially confidential information but the process that was in existence at the prison at the time was pollard's letters were all submitted for review and that is and then and they were censored and and had had the united states government been of the view at the mandatory parole hearing in two thousand and fifteen that these letters violated any rule or procedure they would have brought that up at the at the mandatory parole hearing and yet they conceded that through his thirty years of incarceration he had followed all the rules the were no material infractions little confused yes to the extent that he sent letters classified information with the air force answered i'm not sure why whether he was sanctioned for it or disciplined for it is the relevant inquiry in prison they were able to examine and censor all his mails out of prison on parole without monitoring there was more of a risk that he could communicate without it coming to the attention of the authorities so it seems to me that the fact that he did attempt to disclose this information in various letters in prison is relevant for the commission to consider in deciding to put him on monitoring outside of prison so that there would be something comparable to what they were able to do while he was in prison to ensure that there were no communications what am i missing i think the court point is the government's that way i mean i understood it that he communicated he had attempted to communicate classified information and i'm just reading the relevant portion and unless i've missed something i agree he doesn't say therefore he remembered this material but the fact that he was communicating it showed that he remembered it at least for a significant period of time and you want to say well what he remembered ten years is not what he remembers it thirty years that doesn't seem obvious to me no what i want the court to keep in mind is two things happen between one nine hundred ninety five and two thousand and sixteen and two thousand and seventeen one the passage of another twenty years to most of the information that was accessed in one thousand nine hundred four in one thousand nine hundred five that was created thirty to thirty five or forty years ago is no longer confidential let me just address computer monitoring for a minute you have the  there is absolutely no purpose for workplace computer monitoring when pollard to walk through a net and talk to anyone he can use a phone he can call anywhere in the world he can send old fashioned notes and letters he can speak to anyone there's simply no legitimate government purpose other than creating an embarrassment and a burden on pollard to hold a white collar job because it's simply unfair to expect a financial firm to have computer monitoring this is not a situation where you've got a pedophile or a drug dealer where you can put some search terms in and block it you cannot today as a college graduate have a white collar job and not use the internet and effectively this this prevents the court to remain and let the commission do its job