Key North Charges Thrown Out; Judge Blames Atty. Gen.

Federal Judge Gerhard A. Gesell, blaming Atty. Gen. Dick Thornburgh’s certification of the potential damage of disclosing national security secrets at trial, today dismissed the two central Iran-Contra charges against Oliver L. North.

In his bench ruling, Gesell said he had “no factual basis for contesting” the Administration’s decision to bar independent counsel Lawrence E. Walsh from using classified documents to pursue the charges.

Gesell, who had refused to dismiss the two felony counts until he received an affidavit from Thornburgh, said he knew of no way for the court to “force the attorney general to prosecute a case that the attorney general does not desire to prosecute.”

North, the former White House aide whose 1986 firing broke open the Iran-Contra scandal, still faces 12 criminal counts ranging from obstructing Congress to receipt of illegal gratuities, and Gesell made no move to delay his scheduled Jan. 31 trial date.

The conspiracy and theft charges dismissed today, however, focused on the central element of the scandal--North’s role in the alleged illegal diversion to Nicaraguan Contra rebels of about $14 million in proceeds from the secret 1985 and 1986 U.S. arms sales to Iran.

Walsh petitioned the court last week to dismiss the two charges when several Reagan Cabinet officers, including Thornburgh, refused on national security grounds to declassify documents the prosecutor said were vital for him to proceed.

Gesell said, however, that because Walsh was describing an Administration policy decision, he wanted the attorney general himself to certify that the decision was made at the highest levels of government. Walsh and Thornburgh each filed declarations with the judge on Thursday.

Gesell noted at today’s hearing that, in passing the 1980 Classified Information Procedures Act to ease prosecutions where intelligence information is at risk, Congress intended for the attorney general “to balance the policy considerations.”

“In the longer run,” Gesell said, “the possibility always exists that a freewheeling independent counsel might take a different view of what was in the national interest than these other Cabinet officials nominated and confirmed by the Senate.”

He said of Thornburgh’s decision: “The effect is the same as dismissal. The court feels it has neither the discretion nor legal authority to do anything but to grant the motion.”

After dealing with several other pretrial matters, the judge convened a closed hearing to explore whether problems involving classified data threaten the prosecution of the remaining counts. North’s lawyers argue that they will need to use much of the same material to defend him against the remaining counts.