Justice in the North Case

To his credit, President Reagan in recent months has avoided meddling in the Iran-Contra trial of Lt. Col. Oliver L. North. Despite growing pressure from the right wing of the Republican Party, Reagan has declined to grant a presidential pardon to North or even to speculate again, as he did last summer, about his former aide’s innocence. Only Thursday, when asked by reporters whether he believed that North and former national-security adviser John M. Poindexter ultimately will be acquitted, the President demurred. “I think we have to let the judicial process proceed,” he said.

Cynics may wonder, nevertheless, whether the Administration’s decision to withhold top-secret documents that North is seeking for his defense means that the White House is trying to do indirectly what the President won’t do directly--let North off the hook. If U.S. District Judge Gerhard A. Gesell ultimately rules that North cannot have a fair trial without access to the national-security secrets that are now blocked by the Administration’s intelligence officials, he would be required to dismiss some of the charges against North; it is possible that the entire trial might be aborted. That outcome would certainly feed speculation that North’s lawyers, in hopes of winning a dismissal, had pressed for materials that they knew the Administration could never release; cries of “cover-up” would be heard throughout the land.

And yet, despite the inevitable suspicions that the White House is trying to sabotage the trial of the man whom Reagan once called “a national hero,” all indications are that the decision to withhold national secrets was not politically motivated. It was made not by the President but by a panel of senior intelligence officials, some of whom are known to be skeptical--if not contemptuous--of North’s clandestine campaign to fund the Nicaraguan Contras by selling arms to Iran. And, when the decision was relayed to independent counsel Lawrence Walsh, he did not challenge the panel’s finding that the documents in question were “state secrets of the highest order”; some supposedly deal with covert operations abroad and with the location of U.S. hostages in the Middle East.

Walsh remains confident that he can prove, without spilling any secrets, that North is guilty of conspiracy, defrauding the government and lying to Congress. His case is constructed primarily on unclassified materials as well as about 350 classified documents, totaling fewer than 2,000 pages, from which he has agreed to delete details that might jeopardize U.S. agents or operations abroad. Interestingly, it is North--that self-proclaimed guardian of the public interest--who wants to divulge a virtual archive of secrets. His attorneys have demanded the restoration of the details that Walsh wants deleted from classified documents, so that North can mount an effective defense. They also seek the release of 40,000 additional pages of secret documents, many of them unrelated to the Iran-Contra affair. These are the papers that the Administration is withholding.

The task of reconciling national security with North’s right to a fair trial now falls to Gesell. Throughout the long pretrial skirmishes he has been scrupulously evenhanded. The judge ordered separate trials for the four defendants, over Walsh’s objections, and barked as often at the prosecutors as at defense counsel. He has repeatedly said that North should be given wide latitude to introduce secret documents as long as they are relevant to the defense.

In the weeks ahead Gesell can be trusted to be tough-minded both about the government’s blanket claim that national security would be imperiled by the disclosure of the documents and about North’s contention that he needs all of them to defend himself. If individual documents appear critical to the case, he can prod the government to reassess their secrecy and urge the prosecutors to make available at least summaries. But he can push only so far; ultimately the Administration will decide how many secrets can be divulged.

Gesell should be equally skeptical of North’s contention that somewhere in that morass of defense secrets and diplomatic notes are documents that will prove his innocence. If such papers exist, they have eluded both the congressional committee that investigated the Iran-Contra scandal and the Tower Commission. Like all criminal defendants, Oliver North deserves access to the evidence necessary to assemble his defense. But it would be a travesty if he were allowed to escape trial by demanding state secrets that were utterly irrelevant to his case.