North Trial Secrets Curbs Twice Rejected : Justice Dept. to Seek Supreme Court Order After Being Rebuffed

For the second time in two days, a panel of appellate court judges on Friday rebuffed efforts by the Justice Department to delay the trial of former White House aide Oliver L. North.

Government lawyers, however, will try to get an unusual weekend order from Chief Justice William H. Rehnquist to postpone the trial.

Atty. Gen. Dick Thornburgh said that Justice Department attorneys will file legal papers today asking Rehnquist to grant a stay in North’s trial, which is scheduled to resume Monday, until the Supreme Court can review the department’s arguments that tighter restrictions need to be imposed to prevent state secrets from being revealed in the courtroom.

Thornburgh complained in a statement that U.S. District Judge Gerhard A. Gesell “unfortunately . . . has chosen not to follow the provisions” of the 1980 Classified Information Procedures Act governing the handling of sensitive evidence at a trial.

‘Procedures of His Own’

“Instead,” said Thornburgh, “he has adopted procedures of his own which do not provide the needed assurances of protection to sensitive matters.”

Gesell has established broad categories for what may and may not be revealed in court but, out of concern for North’s right to a fair trial, has shied away from allowing government security experts to screen every piece of evidence North wants to introduce.

Thornburgh issued his statement after Justice Department officials had renewed their efforts in the U.S. Court of Appeals to stop resumption of the trial, contending in new papers that North’s attorneys may reveal national security secrets in their opening statements to the jury Monday.

Justice Department officials have not suggested what items they are referring to, but North has indicated he wants to apprise jurors of other foreign covert operations besides the Iran-Contra events in which he participated and which had presidential authorization.

Gesell completed selecting a jury of nine women and three men Thursday but postponed swearing them in until all legal problems could be resolved. He told them to return Monday.

Justice Department attorneys have argued in their two days of filings that Gesell must be ordered to screen in advance the disclosures of defense attorneys based on advice from government security analysts.

The appellate judges reiterated Friday that Thornburgh has no standing to try to alter Gesell’s guidelines for use of the documents, but they noted that the attorney general has authority to withhold specific top-secret documents or other sensitive evidence if he deems that its disclosure would harm national security.

Such an extreme action could abort North’s trial altogether.

The judges agreed with contentions by Gesell and by independent counsel Lawrence E. Walsh that Thornburgh could not intervene in trial procedures because Walsh, and not the Justice Department, is in charge of prosecuting North under provisions of the Ethics in Government Act. That act sets up a court-appointed special prosecutor to investigate and prosecute present or former high government officials.

In its latest filing, the Justice Department was critical of Walsh, who has publicly split with the department by endorsing guidelines established by Gesell. Walsh has declared that political appointees in the department have no right to intervene in his prosecution.

The department charged in its brief that part of the current problem results from Walsh’s “reluctance to insist that statutory requirements (of the 1980 Classified Information Procedures Act) are followed and his apparent indifference to the national security consequences of the course now being pursued.”

Last month Thornburgh, who heads an inter-agency committee of security analysts, determined that sensitive government documents needed for North’s trial on conspiracy and theft charges in the Iran-Contra scandal could not be provided without compromising U.S. secrets. As a result, Walsh and Gesell decided that those principal charges must be dismissed from the case, leaving North to stand trial on 12 lesser counts, including alleged destruction of documents and alleged false statements to Congress and a presidential board of inquiry.

The latest government brief, signed by Assistant Atty. Gen. Edward S. G. Dennis Jr., who heads the department’s criminal division, said it is urgent that North’s trial be prevented from resuming until a higher court can weigh the department’s arguments.

“Unless this court grants the government’s motion for a stay, it is likely that on that date (Monday) highly sensitive items of classified information will be revealed by the defense in its opening statement, causing irreparable damage to both the national security and foreign affairs interests of the United States.”