U.S. Judge Drops Charges Against Ex-CIA Agent

A federal judge Friday dismissed all charges against a former CIA station chief indicted in the Iran-Contra scandal, two days after Atty. Gen. Dick Thornburgh barred the courtroom disclosure of classified information.

The information withheld by Thornburgh “is essential to this defendant,” said U.S. District Judge Claude M. Hilton. The judge ignored pleas from a prosecutor that “a workable scheme” could be developed to bring to trial Joseph F. Fernandez, the former CIA station chief in Costa Rica.

Independent Counsel Lawrence E. Walsh subsequently filed an appeal, assuring that a final decision is still weeks away.

Hilton’s dismissal of all four charges against Fernandez followed an unprecedented action Wednesday by Thornburgh.

Citing his powers under the 9-year-old Classified Information Procedures Act, Thornburgh ruled out the use of sensitive government documents at trial that could disclose the existence of U.S. programs and CIA bases in Latin America. He was the first attorney general to exercise his power as final arbiter of what classified material may be withheld from a criminal proceeding.

Hilton said Fernandez needed the classified documents, without deletions or changes, to defend himself against charges of lying and obstructing justice in the Iranian arms investigation.

Associate independent counsel Laurence Shtasel asked Hilton to grant him another week before dismissing charges, saying he was discussing with intelligence officials “a workable scheme whereby this case could go to trial,” presumably on scaled-down charges. But Hilton declined on grounds the government had known of his views during months of pretrial discussions.

After the ruling, Shtasel told reporters: “We are troubled by the actions of the intelligence agencies and the attorney general, who have made bringing this case to trial extremely difficult.

“This is a significant Iran-Contra prosecution,” he said, adding: “We will now appeal Judge Hilton’s rulings to the U.S. 4th Circuit Court of Appeals, making every effort to bring the Fernandez case to trial.”

Walsh had criticized Thornburgh for trying to protect “fictional secrets,” referring to CIA facilities and programs that already had been disclosed in congressional hearings two years ago.

These hearings also showed that Fernandez helped set up an airstrip to assist former White House aide Oliver L. North in arming the Nicaraguan Contras at a time when Congress had banned all military assistance to them.

A career intelligence officer, Fernandez was indicted on charges he made false statements about these activities to a 1987 panel appointed by then-President Ronald Reagan. Fernandez was also accused of lying during a separate inquiry by the CIA inspector general.

Fernandez said outside the courthouse that the past years have been “extremely difficult for me.”

The prosecution of working intelligence agents “sent a chilling message . . . to the men and women of the CIA’s clandestine service,” he said.

“But we knew we were right. I have no antagonism, no animosity,” he concluded.

Thornburgh said in a statement that “today’s decision by Judge Hilton need not end this case.” He said he agreed with Walsh that Hilton erred last summer in rejecting a government proposal that vague language could be substituted for key sections of some top secret documents Fernandez wanted to use.

“I continue to believe that this case can be tried without compromising the defendant’s right to a fair trial or the national security of this country,” Thornburgh said.

Two outside legal experts, however, said that in most cases appellate judges recognize the discretion of a trial judge such as Hilton to dismiss charges when he feels a defendant cannot mount a proper defense.

“Chances are slim” that Hilton’s dismissal of the case will be reversed, said Joseph E. DiGenova, a former U.S. attorney for the District of Columbia with experience in intelligence matters.

“The independent counsel (Walsh) brought about his own dilemma in refusing to follow procedures used by the Department of Justice--that is, to discuss charges prior to indictment with intelligence experts to determine what documents are relevant and whether they can be disclosed at trial,” DiGenova said.

“Instead, the independent counsel decided to risk dismissal by indicting first and parsing later. The results were inevitable,” he said.

G. Robert Blakey, a law professor at the University of Notre Dame, said that “every defendant has a pre-eminent right to a fair trial.

“Of course, the government has a right to prove its charges, and a judge must not go to extremes in throwing out a government case,” Blakey said. “It’s a difficult balance. But where the two rights cannot be reconciled, a judge properly can throw out a case.”