Graymail, Secrets and the North Trial : Law on Classified Data Makes Vast Difficulty for All Parties

The charges swirl around the blond-paneled courtroom in Washington where the Iran-Contra case is being readied for a jury. Is the independent counsel unfairly trying to prevent Lt. Col. Oliver L. North from showing that he is the “white hat” hero of the Iran-Contra affair and many other clandestine intelligence missions? Or, instead, is North trying to “graymail” his country by threatening to expose the nation’s deepest secrets if he is forced to trial?

The posturing on both sides tends more to obscure the underlying issues than to illuminate them. The judge himself has, until quite recently, seemed baffled, if not befuddled, in deciding which side to believe.

To understand the dispute, it is important to recognize that both sides are playing for high stakes. (Witness, for example, North taking the extraordinary step of subpoenaing the President, the President-elect, the secretary of state and other high officials to testify on his behalf.) The independent counsel, former federal Judge Lawrence E. Walsh, is seeking to persuade a jury that North is a felon who conspired to “defraud” the United States by depriving the public of its right to have government officers and agencies perform their duties properly.

The prosecutor charges that, by arranging the secret sale of arms to Iran and then even more secretly using the profits to finance the Nicaraguan Contras, North was perverting the governmental process, misusing government assets and frustrating Congress’ desire--however clumsily expressed--to distance our government from the Contras.

In response, North contends that his role in orchestrating this international arbitrage fell well within the scope of the vital and shadowy missions that he had regularly been entrusted to perform with approval at the “highest levels” of government. He was commissioned, he contends, to exercise the kind of bravado and ingenuity that the staid bureaucrats in the more traditional intelligence services could not duplicate.

To prove his point, North wants to lay before the jury highly classified documents--about 30,000 pages worth--that he claims would show the range of authorized (or implicitly sanctioned) anti-terrorist missions that he conducted. These records also would illustrate his regular--and approved--practice of using unorthodox and “off-the-books” ventures (like Swiss bank accounts and dummy corporations) to keep the nation’s enemies in the dark.

As the trial judge recognized early in the case, North and other potential witnesses “operated from secure locations in the White House with full access to the most sensitive information and most critical national-security intelligence methods and sources available to the government.”

The crunch comes because the intelligence agencies want a tight lid clamped onto this information. They also want to suppress the super-secret information that North carries around in his head and has pledged--or threatened--to disclose if he is forced to exonerate his conduct at a trial.

The problem is not new, even though the Iran-Contra case portrays it on a grander scale. For many years a bizarre paradox confronted prosecutors, spies and renegades in the national-security apparatus--the more sensitive and important the crime, the less likely it would ever be prosecuted. In our system, not only is the accused entitled to an open public trial, but even members of the press and ordinary citizens can demand the right to sit in the spectators’ gallery as the evidence unfolds. Thus the prosecution must prove its case with evidence placed on the public record. The accused in turn is entitled to bring out all facts that may explain his actions or mitigate his culpability.

This phenomenon became known as “graymail”--the prospect that the stakes might be raised too high if the government proceeded with a prosecution relating to national security because a public trial would inevitably disclose even more secret information. Offenses involving national security thus acquired a kind of practical immunity from prosecution.

In 1980, however, Congress tried to fashion a compromise that would respect the legitimate interests of prosecution and defense while protecting the public interest in allowing courts and juries to resolve criminal charges involving security-related activities. That statute, the Classified Information Procedures Act, imposes limits on a defendant’s ability to discover classified information in the government’s files. The statute also regulates the process for using classified documents or testimony at trial.

The basic premise of the statute is that a federal trial judge, using flexible and creative alternatives, can help forge substitutes for detailed classified information that will leave the defendant in substantially the same position as if the classified details themselves had emerged. Thus, when the government responds to pretrial demands for classified documents, the judge may permit the government “to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.”

More sticky is the control of information already in the defendant’s possession--including documents not only in his possession but also information in his head--as well as the testimony of witnesses. The statute addresses these concerns by imposing on the defendant the obligation to give advance warning to the government and the court if he “reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding.”

If the judge concludes that the information is relevant and permits either pretrial discovery or potential disclosure at trial, the government then can invoke the judge’s power to approve substitutions for the “specific classified information.” The alternatives include a statement in which the government admits the relevant facts that the information would tend to prove, or submits a summary of the classified information. The test to be applied is whether “the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.”

For example, if the accused seeks to defend his conduct by claiming that he was acting to protect highly classified nuclear targeting plans, the judge might simply require the prosecution to acknowledge before the jury that there are such plans without publicly disclosing the actual classified target assignments themselves.

The statute has real teeth. It forbids a defendant to disclose any information “known or believed to be classified” in connection with his prosecution until he has given the required notice and afforded the government the opportunity to challenge his plans or at least to persuade the court to allow unclassified substitutions for the information said to be relevant to the defense. If the defendant fails to honor this obligation, the statute authorizes the judge to “preclude disclosure” of any classified information not covered by the screening procedures and to “prohibit the examination by the defendant of any witness with respect to such information.”

Since 1980 the government has used the statute successfully in espionage and counterintelligence cases. The process that it requires, however, can be time-consuming and cumbersome. It was not really designed for a case in which, as in Iran-Contra, the prosecution concedes that perhaps 30,000 pages of classified data may be relevant to the charges but insists that they cannot be used in their raw form in a public trial.

In addition, defendants including North vigorously challenge the constitutionality of the process itself. As North argues--and the constitutional issues remain open--these procedural requirements raise difficult questions under the Fifth Amendment (self-incrimination) and the Sixth Amendment (effective assistance of counsel). By requiring the defense to make pretrial disclosures of the information that may be used at the trial, including the testimony of defense witnesses and perhaps even of the defendant himself, the statute also implicates the due-process clause. That clause generally limits the government’s power to force the accused to lay bare defense claims in advance of trial, at least where the prosecution does not assume a reciprocal burden of full disclosure before trial.