A foul-up by government security experts who classified documents that were already public led a federal judge Tuesday to suspend testimony in the trial of former White House aide Oliver L. North for a second straight day.
U.S. District Judge Gerhard A. Gesell, dismissing the jury to inquire into the foul-up, said he was disturbed by “the looseness . . . in dealing with classified problems” on the part of the government. Gesell said he was so confused by the unnecessary deletions from a key document that, “I don’t know what the rules myself are anymore.”
He expressed exasperation that members of the jury, chosen on Feb. 9, have missed 2 1/2 weeks of trial time because of legal problems associated with the use of classified material needed to prosecute North.
Gesell wondered aloud “whether or not a fair trial can be given” under restrictions imposed by the 1980 Classified Information Procedures Act. North’s trial in the Iran-Contra scandal represents the first major test of that act, which sets forth methods for screening top-secret material that may be relevant to a criminal prosecution.
Brendan V. Sullivan Jr., North’s chief defense lawyer, charged in a written motion that the foul-up by prosecutors constituted “fraud on the defense” by making it more difficult for him to cross-examine Robert W. Owen, a prosecution witness who was North’s former private courier to the Nicaraguan rebels. Sullivan asked for dismissal of all 12 felony charges against North on grounds of prosecutorial misconduct.
Gesell took no immediate action on the motion, saying he was “not trying to look for sanctions” but was concerned about “getting to the bottom of what’s going on” regarding the use of classified documents. He said he may hold a further hearing later this week.
The problem arose when Sullivan told the court Tuesday morning he had learned the previous night that memos written by Owen to North in 1985 and 1986--introduced by prosecutors on Friday in censored form--were already part of an open court record in Florida in a private lawsuit brought by the Christic Institute, an activist group that has sued some of the Iran-Contra defendants.
Sullivan noted that prosecutors objected on Monday, and jurors were dismissed in mid-afternoon, when he asked for a closed hearing to seek the judge’s permission to reveal the identity of a former Costa Rican official whose name had been deleted from one of the memos. The Christic document, published by some newspapers on Tuesday, showed the official was former security minister Benjamin Piza.
What Is, Isn’t Classified
When Sullivan filed his motion charging the prosecution with misconduct, Gesell sent the jury home for the day, telling them: “We are dealing with problems inherent in the nature of this trial--what is classified and what isn’t classified.”
Sullivan charged that prosecution attorneys working under independent counsel Lawrence E. Walsh knew about this situation 18 days ago but never told Sullivan that the memo was public in uncensored form and thus was no longer classified.
“The government is simply unable to manage the classified information at issue here in a manner that permits a fair trial,” Sullivan charged.
Chief prosecutor John W. Keker told Gesell that “there was knowledge” of this development by some members of the independent counsel’s staff on Feb. 10, but steps were initiated to correct it. Keker’s associate, Michael Bromwich, said no one knew, however, that the Owen memos that the Christic Institute had obtained were made part of an open court record.
Bromwich said Allen Stansbury, a security officer on Walsh’s staff, was assigned to try to recover the memos from Christic on grounds the documents had been censored for national security reasons. But Stansbury said he was still researching the legal implications of approaching Christic.
Keker said an attorney for Owen had submitted the memos to Christic in response to a subpoena without realizing that government experts considered them classified.
Gesell concluded the hearing by saying that Owen would be called back this morning to be cross-examined by Sullivan. Keker said he would no longer object to portions of the memos on national security grounds.