North Derails ‘Rough Justice’ : Secrecy Issues Strained the Law to the Breaking Point

The decision of independent counsel Lawrence E. Walsh to seek dismissal of the two key charges against Lt. Col. Oliver L. North underscores the difficulty of prosecuting a case of this magnitude, even under the 1980 Classified Information Procedures Act. North’s lawyers thought the imperatives of secrecy ultimately would be his shield. For several important reasons they appear to be right.

North has argued (as have others) that the Sixth Amendment right to confront the witnesses against him protected his power to cross-examine prosecution witnesses by using any information that might cast doubt on their testimony. One key tactic of cross-examination is the element of surprise. The obligation to alert the prosecution to proposed lines of cross-examination that would involve classified information blunted an otherwise potent opportunity for sharp cross-examination.

The Supreme Court has not had the opportunity to rule on the constitutionality of the Classified Information Procedures Act. Some of the statute’s procedures, however, are modeled on analogous requirements that the court has sustained. These include rules that the accused give advance notice of the intent to use an alibi defense or an insanity defense. As one of the witnesses who urged Congress to enact this statute to deal with the problem of “graymail,” I have viewed this statute as sufficient--at least in a “typical” case--to protect the accused’s legitimate interests in mounting a fair defense.

Yet it is only fair to acknowledge that this statute does require far more comprehensive concessions by the accused than either the notice-of-alibi or insanity-defense rules. As Walsh’s action on Thursday seems to indicate, the restrictions and obligations imposed by the statute might really frustrate North’s constitutional rights, not to mention the government’s desire to keep a tight lid on secrets concerning national security.

Vigorous and often vicious skirmishing had already taken place over the classified information to be used in the North trial. The independent counsel has made available hundreds of thousands of pages of highly classified information that bears on the criminal charges. At one point the judge expressed frustration that the nature of the government’s charges and the conceded bulk of relevant classified information might make it impossible to sort through all the classified material and either declassify it or develop adequate substitutes for it. The judge publicly implored the President and a special interagency intelligence group to say whether national-security concerns were so pervasive that they should override the prosecution itself.

Since the independent counsel had indicated that he would defer to the national-security damage control assessments, the judge’s public lament appears to have brought a partial de facto pardon--a determination that, despite the Classified Information Procedures Act, the danger of going forward with the main points of prosecution was simply too high.

The prosecutor himself had proposed to use a vast array of sensitive information as part of his case-in-chief. For example, he had listed 87 potential witnesses, many of whom were identified as officials “acquainted with high-security matters,” and eight who were so sensitive that they could not even be identified publicly.

Early last month the trial judge completed his review of the approximately 300 classified documents that the prosecution had proposed to use against North in some altered or redacted form. The judge also ruled on proposed protection of live prosecution testimony. Deferring to national-security concerns, the judge approved using generic pseudonyms for persons involved in covert intelligence activities for the U.S. government.

Nevertheless, the judge refused to mask some items of information that worried the intelligence community, including the identity of eight specific countries in which covert operations were being conducted. The judge also required reasonably specific identification of foreign officials by “relative rank and field of activity.”

In addition, the judge rejected the prosecutor’s argument that these amended versions of classified documents should be concealed from the public. He also acknowledged that he could not guard against the risk that witnesses might reveal classified information during their testimony through “ignorance, inadvertence or otherwise.”

The real fireworks, however, came in the cantankerous dispute over the secret information sought by North and his lawyers. While challenging the constitutionality of the notice requirements of the statute, North also provided a list of secret documents that he wanted to use. He included nearly 40,000 pages of documents and 90 tape recordings. The list itself runs to nearly 400 single-spaced pages.

With the concurrence of the judge, however, the independent counsel avoided the dilemma of either becoming bogged down in endless reviews of the relevance and sensitivity of the data or raising the white flag of surrender. Instead, the prosecutor insisted that North’s demands were simply an attempt “to overload” the statutory process with “irrelevant and immaterial issues and documents” and “thereby to avoid a trial.” The judge agreed, striking North’s latest notice, concluding that it “blatantly lacked” any attempt to link the listed information with the issues in the case and represented a tactic of “obdurate, purposeful obfuscation” designed to ensure that “there would be no trial.”

As a remedy, the judge had tried to decree his own notion of rough justice. Since the independent counsel had decided to limit the prosecution’s case to 300 sanitized versions of classified documents, the judge decided to let North select 300 documents from his original omnibus list and attempt to prove that they were material to his defense. He prohibited the defense from using any other classified information at trial.

Although the outcome at first seemed to be a victory for the prosecution, North and his counsel had effectively framed their constitutional challenges for a later appeal. By taking a firm and unyielding line on the scope of information that they were entitled to use in defending against the charges, they succeeded in getting the prosecutor and the trial judge to toss them into a briar patch that was not entirely uncomfortable. They could target 300 of the most sensitive and most difficult-to-sanitize documents, and the trial judge would have been hard pressed to reject their arguments that these documents were crucial to the defense and must be presented in substantially raw form.

In addition, although the symmetrical decision to allow the defense to use only the same number of classified documents as the prosecution has elected to use might have seemed superficially fair, an appellate court could have seen this judicial directive as essentially arbitrary. There is, for example, no necessary correlation between the sets of 300 documents on such potentially vital issues as length and substance. More important, it is often more complicated to answer a charge than to make it, since the surrounding context may cast a very different light on a seemingly simple incident.

Thus a 300-document limit, imposed in a vacuum, might have unduly crimped North’s ability to show the jury what it should know before deciding if he was a treacherous criminal or a loyal public servant. The judge’s flat numerical ceiling would have made it easy for North’s lawyers, on appeal, to spotlight a few of the thousands of excluded documents that the ruling had foreclosed them from using.

Even if the judge agrees to Walsh’s motion, North still faces trial on a dozen criminal charges. Many of them will still involve the issue of using classified information. Yet Thursday’s action gives a hint that, as far as this classified information is concerned, North and his lawyers may well have had the last word. Even if the trial proceeds on the remaining charges, the constitutionality of the 1980 statute will cast a cloud of uncertainty over the case for many months to come.