group must proceed intermittently as documents are noticed while other documents remain to be identified for notice or await ruling. The Court will expect completion of the process to the Section 6(c) stage before August 1, 1988.
(5) The Court will at no time review in advance defense counsel's opening statement, proposed defense questions or the subject matter to be covered by defense witnesses. It contemplates only that counsel for North will proceed at all times within the scope allowed by the Court's rulings on the notices, that counsel will so advise defense witnesses, and that the Court will be advised sufficiently in advance if unexpected developments during trial indicate to defense counsel a pressing need to proceed beyond these strictures so that further court ruling can be obtained.
(6) There will be no review of defendant North's testimony in advance. When and if he is about to testify, his counsel will advise the Court if it then appears the testimony will involve classified national security disclosures beyond those then authorized under prior rulings of the Court and, again, a specific further ruling will be obtained.
This procedure preserves the essential protections of CIPA but in a manner that does not impair defendant's rights. There is no reason to believe that Mr. Sullivan, defendant North's highly professional, experienced counsel will knowingly abuse the Court's willingness to allow the case to proceed without the excessive judicial supervision that CIPA might require under different circumstances.
(7) There is no present need to alter the Court's Protective Order.
One final matter touching on CIPA is presented by a separate series of briefs directed to the nature of Independent Counsel's CIPA authority. He is, in the Court's view, responsible for the investigation and prosecution of this case under each of his dual appointments. He has advised the Court that he will proceed with deference to the Executive's national security concerns as expressed to him through the interagency declassification group with which he has closely collaborated.
This question of where ultimate authority rests under CIPA as between the Attorney General and Independent Counsel under various circumstance that may arise from this point on under Section 6(c) or otherwise is not ripe for decision. Common sense suggests the Attorney General should immediately appoint a statutory designee under CIPA for all purposes so that his designee can be informed of any serious national security concerns, if and when they arise, both by the Justice Department's representative on the interagency declassification group and by Independent Counsel. This would assure a prompt, informed mutual decision by the Attorney General and Independent Counsel should any major issue concerning disclosure of classified material arise at any future stage of this case and minimize delay.
The defendants' joint motion to declare the provisions of CIPA, particularly as applied to this case, and the Court's Protective Order unconstitutional is denied, without prejudice to await further developments, and the Court declines to rule on the status of Independent Counsel under that Act at this time for lack of ripeness, awaiting the Attorney General's possible appointment of a designee under that statute.
June 22, 1988