No Trial for North?

Now that Oliver L. North’s attorneys have succeeded in getting his trial postponed until after the November presidential election, there is rising speculation among lawyers that he will never be tried at all. A presidential pardon is always a possibility, though President Reagan has wisely indicated that he would prefer to let the legal process run its course. The real threat to a trial for the retired Marine lieutenant colonel comes not from the White House but from another source--the mountain of government secrets that North insists are essential to his defense.

The classified documents--some in the possession of independent counsel Lawrence E. Walsh, some still closely held by the Central Intelligence Agency and other government agencies--have become central to North’s defense against the 16-count indictment. With those documents North apparently hopes to prove that, in diverting profits from Iranian arms sales to the Contras, he operated with the understanding that his actions had been approved by higher officials in the Reagan Administration. With the documents he also expects to show that other covert operations were carried out in the same way. And without them, his attorneys are certain to argue, he will be denied a fair trial.

What exactly do the documents contain? Nobody knows for sure the significance of all of them--not Walsh, not U.S. District Judge Gerhard A. Gesell, perhaps not even the members of the interagency committee that reviews them and decides whether they can be surrendered to North and his three co-defendants. Russell Bruemmer, the CIA’s general counsel, has testified that the public disclosure of some papers that North seeks would do “grave damage” to national security and compromise U.S. intelligence sources abroad; a few documents are so sensitive, Bruemmer said, that only President Reagan has the security clearance to read them.

Early in the pretrial maneuverings, Gesell ruled that North must have access to classified materials because the indictment “alleges a course of conduct carried out using classified materials in classified channels from a highly classified site.” Access to the national-security archives was also dictated by Supreme Court decisions that require federal prosecutors to turn over to criminal defendants any exculpatory materials in the government’s possession. But, while the government has a legal duty to surrender such materials, Gesell lacks the power to order the intelligence agencies to declassify secret documents requested by the defense.

Walsh suspects, with some justification, that North’s strategy is to demand so many sensitive documents that the CIA will balk, his lawyers will argue he cannot get a fair trial and some or all of the charges against him will be dismissed. North’s lawyers do seem to have an insatiable appetite for such documents; they have requested somewhere between 300,000 and 1 million. And their explanation--that they cannot be sure of the relevance of each until they have read it--is the surest sign that this is an elaborate fishing expedition.

Last month Walsh tried to call a halt to the process by announcing that his investigation had produced no evidence that President Reagan or Vice President George Bush knew of the diversion of proceeds from Iran arms sales. Walsh said that no superiors of North other than former national-security advisers Robert C. McFarlane (who has plea-bargained with Walsh) and John M. Poindexter (who will be tried after North) “knew enough about North’s activities to have conveyed even informal or implicit approval.” Walsh’s conclusions squared with the findings of the Tower Commission and of the joint congressional committee that investigated the Iran-Contra scandal. But North clings to his position that his actions were authorized by higher-ups.

North has never shown much respect for the rule of law. He maneuvered to keep the Contras supplied with weapons when such assistance was banned by Congress, because he believed that what he was doing was right. Later he shredded documents about the operation--one step aheadof the FBI--because that, too, was for the greater good. Now, though a presidential commission and a committee of Congress and an independent counsel dispute it, he says that there are documents to establish high-level authorization for his acts. We don’t believe him, and we see no reason for the federal government to move mountains in what is certain to be a fruitless search for a paper that does not exist.