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Dispute Over Classified Secrets Nearly Scuttled North Trial

February 18, 1989

WASHINGTON (AP) _ Oliver North’s Iran-Contra trial, scheduled to start Tuesday, nearly fell apart because of an order the judge in the case issued a month ago concerning classified material.

U.S. District Judge Gerhard A. Gesell spelled out in that Jan. 19 order the problems he saw arising in connection with classified secrets that North and his attorneys wanted to reveal in the courtroom.

″North and his counsel have ... been ... unwilling to advise the government, except occasionally in the most generalized terms, why they believe that a particular document or portion of a document is relevant, material and required in defending the case,″ said Gesell.

North, a former National Security Council aide, is facing 12 felony charges ranging from lying to Congress to shredding Iran-Contra documents.

Under the Classified Information Procedures Act, the government and the defense are required to spell out what state secrets they expect to disclose. Intelligence agencies then decide whether to declassify the information for use in the courtroom.

Gesell’s problem was this: How can a judge determine ahead of the trial whether sensitive classified material should be introduced in North’s defense without knowing how or whether it ties into the case?

The judge described his dilemma as ″legal gridlock″ and the solution he worked out caused concern in the intelligence community.

Questions of whether the material was admissible would be resolved during trial rather than before the trial, Gesell ruled.

In addition, the judge outlined eight broad categories of classified material which North would be permitted to introduce without prior order of the court. They included information tending to show that North’s intent and purpose was not to violate the law.

The National Security Agency and others in the intelligence community worked through the Justice Department in an attempt to build in more safeguards.

Gesell felt sufficient controls were in place and was concerned that too many restrictions would jeopardize North’s right to a fair trial. He used the phrase ″cuckoo clock trial″ to characterize a possible scenario in which there would be frequent courtroom interruptions due to protests from the government over the use of classified material.

Matters got worse Feb. 8 when the Justice Department, acting on behalf of intelligence agencies, sought a court order barring North from introducing classified material without a court order and as long as the government had an objection pending.

Intelligence experts seated in court winced when Gesell declared with regard to classified material: ″I have authority once the trial starts to say this evidence comes in.″ The judge subsequently refused to adopt the Justice Department’s proposal.

The Justice Department was opposed by independent counsel Lawrence Walsh, who asked for more moderate safeguards which Gesell adopted.

It was an awkward moment in the case. Walsh was ready to go to trial and the Justice Department was now engaged in a courtroom duel with the the independent counsel.

The department asked for a delay on Feb. 9, the day a jury was chosen. Chief Justice William Rehnquist issued a stay a week ago.

It took the prosecutors in Walsh’s office and the Justice Department four days to resolve their dispute. Under a proposed agreement, the government outlined nine specific categories of classified information that should not be revealed at trial before Walsh had an opportunity contest its relevance.

The areas included information identifying undercover CIA officers and U.S. covert activities other than paramilitary support to the Contras.

Gesell accepted that part of the proposal, saying he had already approved such safeguards earlier but was willing to restate them. But the judge rejected procedures outlined by a Justice Department deputy in which the attorney general would step in at any time during trial and file affidavits in effect barring disclosure of classified material deemed damaging to national security.

Gesell said he didn’t want Attorney General Dick Thornburgh coming in with ″bits and pieces″ of affidavits and ordered him to stay out of the courtroom unless he was taking the more drastic step of filing a broader affidavit that would kill one or more of the 12 criminal charges against North.

Walsh responded that he would notify the attorney general in advance of planned disclosures in the nine categories, a preliminary step which could lead to piecemeal affidavits being filed by Thornburgh.

On Friday, Gesell cautioned Walsh not to ″unreasonably interfere with the orderly processes of the Court,″ a reference to the power of the government to interrupt the trial and challenge sensitive classified material that North might want to introduce in his defense. What the judge is saying, in effect, is that too-frequent visits to the court by the Justice Department will jeopardize North’s rights.

North strongly objected to Walsh’s plan, saying that it ″defies the Court’s Order, interjects the Attorney General diretly into the trial process, and guarantees the unfair ‘cuckoo-clock’ proceeding that the Court has insisted it wants to avoid.″

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