Thornburgh, Walsh Reach New Accord : Plan Covers Secret Data in North Trial; End to Stay Sought

Independent counsel Lawrence E. Walsh offered a new plan Wednesday for handling classified information at the trial of retired Lt. Col. Oliver L. North, paving the way for resumption of proceedings against the former White House aide.

Atty. Gen. Dick Thornburgh, embracing the guidelines proposed by Walsh, said he will ask the Supreme Court to lift its order temporarily halting the trial, which the Justice Department had sought last weekend.

Walsh’s aides said the latest plan--embodied in four brief paragraphs--was carefully crafted to follow a recent order from U.S. District Judge Gerhard A. Gesell. In effect, the plan gives the attorney general veto power over what classified information may be introduced into evidence at the trial.

Earlier Plan Rejected

Gesell on Tuesday rejected an eleventh-hour compromise agreement between Walsh and the Justice Department aimed at preventing possible disclosure of classified information at the trial on the grounds that the plan was unworkable and was proposed too late. He also objected to any direct participation by the Justice Department in the courtroom proceedings, saying that the 1978 Ethics in Government Act places sole responsibility for North’s prosecution with the independent counsel.

“I am pleased that a mechanism has been developed that will permit the trial to go forward while ensuring that I can fulfill the responsibility imposed upon me by the Congress to protect the national security interests of the United States,” Thornburgh said.

Thornburgh’s statement came only hours after Walsh, in the new court filing, pledged to keep the attorney general informed of potential national security problems in the disclosure of sensitive information. Walsh said that if censorship or other alternatives to protecting state secrets, including the use of substitute language, proved to be unworkable, he would file a protest written by Thornburgh that could terminate the case or at least some of the existing 12 felony charges against North.

Would Accept Statement

“If the attorney general, by affidavit, states that the evidence is such a threat to national security that it cannot be introduced, independent counsel will accept this statement as a statement by the Administration and ask the court to take appropriate action,” Walsh said in his filing.

Meanwhile, Thornburgh, in an interview earlier in the day, acknowledged he is sensitive to suggestions of a possible government cover-up in the North case, but he said he would “take the heat” and scuttle the trial if necessary to preserve vital national security secrets.

Aides to Walsh said the new guidelines followed several long conferences earlier in the day with Justice Department attorneys, but that Walsh’s report to the court was his alone.

Department lawyers had sought to delay the trial last week until they could be assured they could block unforeseen disclosures of state secrets. They obtained a stay in the trial last weekend from Chief Justice William H. Rehnquist after Gesell and the U.S. Circuit Court of Appeals had rejected their protests on grounds the Justice Department had “no standing” to alter procedures adopted by Gesell.

Toni House, a spokeswoman for the Supreme Court, said Thornburgh filed a request Wednesday night asking Rehnquist to vacate his stay. “I would anticipate that the chief justice, acting alone, would act on it tomorrow,” she said.

If Rehnquist, as expected, lifts the stay, trial could resume as early as Friday.

Aside from screening thousands of documents prior to the trial, which began jury selection on Jan. 31, Gesell has made it plain to prosecution and defense attorneys that they must confer with him privately during the trial before introducing evidence in nine specific categories, including CIA activities and third-country support enlisted by U.S. officials for the Nicaraguan Contras.

Could Alert Thornburgh

Such conferences would give Walsh a chance to alert Thornburgh if the judge approved introduction of secret material deemed essential for a fair trial. Thornburgh then could file a sworn protest that might result in charges against North being dropped.

North’s lawyers could not be reached for comment Wednesday night. However, Walsh’s plan and Thornburgh’s subsequent decision to ask Rehnquist to dissolve the stay are not dependent on whether the actions meet with their approval. But, they still could raise objections to the plan when they appear before the trial judge, Gesell.

North’s attorneys have contended they must be able to tell jurors about some sensitive projects in order to properly defend him. But Thornburgh told The Times that if the court proceedings threaten to disclose such secrets, he would feel compelled under the 1980 Classified Information Procedures Act to bar their disclosure.

Thornburgh, interviewed at a breakfast session with editors and reporters of The Times Washington Bureau, said he first wants to “exhaust every avenue that we can to ensure that the trial goes forward” before making such a decision.

Last month, he filed an affidavit that led to dismissal of the principal charges of conspiracy and theft against North on grounds that top-secret data would have to be disclosed for a fair trial on those counts. What remain are 12 lesser charges, including destruction of documents and false statements before Congress and a presidential board of inquiry.

Calls Charges Serious

But the attorney general told The Times that as a longtime prosecutor who believes somebody charged with serious crimes ought to come to trial, he thinks North should be tried.

“The charges are serious,” he declared. “Lying to Congress, lying to the attorney general, destroying evidence. They are not minor charges.”

Thornburgh said he recognizes that since the Iran-Contra scandal occurred during the Reagan Administration and both President Bush and former President Ronald Reagan have called North a “hero,” halting the trial could reinforce suspicions of a government cover-up.

Dispelling such suspicions, he said, “gets back to whether people believe the attorney general and the President. I don’t think there’s any ulterior motive here, but that depends ultimately on our credibility.”

He conceded that scuttling the case would be a political problem for the Bush Administration.