Document Secrecy Could Give North ‘Backdoor Pardon’

Will Oliver L. North ever go on trial?

President Reagan, in public statements in recent weeks that sound conclusive, appears to have ruled out a pardon for North, the retired Marine Corps lieutenant colonel and fired National Security Council aide whom he once called “a national hero.”

In response to reporters’ questions, the President has said that a pardon would be inappropriate until legal proceedings against North in the Iran-Contra case have run their course.

By the time that happens, Reagan will be living in retirement in California. That would leave the question to George Bush, who has suggested that a pretrial pardon implies guilt.

But wholly apart from an official pardon, some attorneys close to the Iran-Contra conspiracy case are now speculating wryly about the possibility of “a backdoor pardon.” By that, they are referring to the chance that the Reagan Administration may choose to protect so many sensitive documents from public disclosure that a federal judge will decide that North is being denied sufficient material to defend himself in court.

Possibility of Dismissal

Gerhard A. Gesell, the tough, independent judge in the case, has acknowledged the possibility that he may have to dismiss the charges. But those who know him and independent counsel Lawrence E. Walsh contend that the two have worked too long and hard to allow the case to go down the drain before trial.

Gesell, who has proposed starting the trial late next month, is meeting behind closed doors with Walsh and North’s attorneys on the thousands of deletions that national security analysts want to make in prosecution documents that would be introduced at trial.

North’s lawyers are said to be arguing that many of the censored portions in the prosecution’s estimated 3,000 pages of material would keep the jury from learning specific information that would tend to exonerate North.

North’s lawyers want most of these deletions to be restored. If Gesell agrees with them, Walsh would then ask Reagan Administration analysts to reconsider the portions they have censored, arguing that the prosecution could not go forward unless they are willing to leave certain documents intact.

Screening Panel

Such a request by Walsh might prove futile, and it would certainly be time-consuming. An interagency committee that has screened these records is a slow-moving body composed of representatives of the State Department, the Pentagon, the CIA and the National Security Council.

An order by Gesell for less censorship--if met by resistance from the Reagan Administration--could trigger the so-called backdoor pardon, with Gesell dismissing the charges on grounds that North is being prevented from receiving a fair trial.

Gesell referred to that possibility last month in cautioning that North’s trial--which, of course, would take place in public--might pose some national security risks for the Administration.

“Under the Constitution,” he said, “it is up to the President . . . to protect the prerogatives of the President’s office if he deems them unduly threatened.”

President’s Prerogative

While noting that the President to date “has made no effort whatsoever to prevent this case from going forward,” Gesell pointed out that Reagan has the power and authority “to withhold any letter, cable, memorandum, tape recording or other written material, regardless of its relevance or materiality to the case, if he deems that appropriate in terms of the prerogatives of his office.”

Reagan said recently that he had a “duty” to withhold certain secret documents from North’s trial, but he denied that he was making any attempt to derail the prosecution.

“This is something that from the very beginning we knew we would have to do,” the President said, referring to the protection of some state secrets.

Friends of Walsh, however, say that he will not allow the White House to kill the case without bending over backward to reach a compromise on the censorship question or, failing that, waging a highly public debate on the issue.

In a recent court filing, Walsh sought to minimize the importance of the deletions to which North is objecting. The prosecutor said that most of them involve the names of specific Central American countries or officials of those countries, the particular locations where Nicaragua’s rebels operated or where resupply operations took place or the identities of Iranian contacts. Other deletions involve the names of CIA agents or reveal covert projects by the agency, he said.

In short, Walsh said, all these deletions are “immaterial to the charges or any defense by North.”

North’s Strategy

North, however, is believed to be intent on disclosing other secret operations in which he was involved that were approved by the President, mainly to show jurors that his activities were similar in the Iran arms and Contra resupply projects. He is under indictment for having “corrupted” Reagan’s arms-for-hostages initiative by illegally diverting profits from these arms sales to the Nicaraguan rebels and concealing his actions from Congress.

Besides questions about the censored portions in prosecution documents, Gesell is also considering a request by North to introduce tens of thousands of pages of other classified documents to shore up his defense.

North’s lawyers say they need to present these documents to the jury because the prosecution’s case is too limited and narrow and would not give jurors a full and fair picture of North’s activities on behalf of the U.S. government.

Walsh has disputed North’s proposal to introduce 30,000 pages of classified material, arguing that North can fully defend himself without using any additional secret files.

Defense attorneys, on the other hand, are disputing Walsh’s plan to introduce 3,000 pages of classified documents that are full of deletions. Because government security analysts have censored so many specific references from Walsh’s prosecution documents, “the trial would not be a search for truth, witnesses could not tell what they knew about the facts, critical documents would never be presented to the jury and the verdict would rest upon a distorted sliver of information selected almost entirely by the prosecution,” North’s lawyers have told Gesell.