Gesell Clamps Down

After eight months of pretrial maneuvering, U.S. District Judge Gerhard A. Gesell finally has lost his patience with Iran-Contra defendant Oliver L. North. As he rejected North’s demand to introduce 30,000 pages of national-security secrets at his coming trial, Gesell accused the former National Security Council aide of deliberately trying to “frustrate the prosecution” by asking for materials utterly irrelevant to his case. Gesell’s stinging order said that North’s attorneys had sought “masses of classified materials under which no conceivable version of a defense could have any utility whatsoever.”

Judicial pique, while always regrettable, may be understandable in this case. Over the objections of Independent Counsel Lawrence E. Walsh, Gesell gave North and his lawyers unprecedented access to an archive of classified materials. Then the judge twice asked North to winnow that collection and to submit a list of documents that he expected to make public at his trial. The first time, North submitted a single-spaced, 265-page list that Gesell rejected as unreasonably long. Then, last month, North submitted a second list that was longer still--500 pages.

Just what did North consider essential to his defense? Gesell, making no effort to hide his fury, offered a glimpse of North’s sweeping and unreasonable requests for extraneous matters. North had sought to make public “the reaction of various Central American countries to congressional legislation, the life history of a potential defector, the precise distribution of Sandinista forces at a particular time among various villages,” Gesell said.

North, charged with conspiring to divert proceeds from U.S.-Iran arms sales to the Nicaraguan Contras, is as entitled as any other criminal defendant to the materials necessary to mount his defense. But, as Gesell has gone public about the closed-door proceedings, it becomes clear that North is abusing pretrial discovery and purposely delaying the case.

Because North’s attorneys have been unwilling to narrow their demands for classified materials, Gesell somewhat arbitrarily has given them until Jan. 3 to submit a list of the 300 documents that they most need--just about the same as the prosecution plans to disclose. (The defense attorneys are probably already planning their post-trial appeals on that point.) But Gesell, to his credit, wants to attack the grueling task still ahead--scrutinizing each classified document, deciding how much can be put on the public record without jeopardizing national security, then haggling with the Administration over whether the document can be used. Ultimately he must decide whether the Administration has granted North use of enough documents to ensure a fair trial; if the answer is no, the judge must dismiss most of the charges against North--granting a so-called “back-door pardon.” If North’s lawyers had their way, just the process of reviewing thousands of documents would take years. What Gesell is saying, properly, is let’s get on with it.