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UNITED STATES v. NORTH

July 8, 1988

UNITED STATES OF AMERICA
v.
OLIVER L. NORTH


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 Two major pretrial issues in this case have been hotly contested. Each issue has raised questions concerning the government's ability to prosecute one or more of the counts naming Oliver L. North.

 The Court has rejected North's pretrial claim that the government has misused his immunized testimony before Congress. What has remained unresolved are North's various claims that the requirements of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. IV, as applied to this unique case, will result in denying him the right to use certain classified government documents he needs for his defense and will, in other respects, deprive him of his constitutional protections as a criminal defendant. These claims had some merit. In its Memorandum Opinion of June 22, 1988, the Court refused mechanically to apply certain CIPA procedures because of its concern that their strict application in this case would contravene established constitutional protections afforded all defendants facing criminal charges. In addition, the Court urged that the Attorney General designate an appropriate official to carry out the Executive Branch's responsibilities under Section 6 of CIPA to avoid any question as to Independent Counsel's authority, and this has been done. *fn1"

 This further Memorandum considers the principal remaining CIPA questions which concern North's ability to conduct adequate documentary discovery before trial and his right to use material obtained through discovery at trial, along with certain classified material found in government exhibits which the government intends to redact and withhold from the jury.

 Although numerous documents have been disclosed to North in classified form, Independent Counsel has advised the Court that the interagency group responsible for declassifying and releasing classified material for use at trial remains adamantly opposed to any public disclosure of the classified information redacted from the Independent Counsel's case-in-chief documents. Independent Counsel has scrupulously deferred to agency representatives who insist on withholding certain information from public view. However, North contends that much of this redacted material is relevant to his defense.

 Although North contends this withholding of information distorts the documentary evidence and fails to reveal the true nature and effect of certain events disclosed by those portions of papers to be publicly released, he has resolutely refused to disclose any details of his defense to Independent Counsel for fear that this could alert the government prematurely to what he considers the inherent weakness in the Independent Counsel's theory of prosecution. This, in turn, led him to make insufficiently particularized discovery requests and prevented his access through discovery to papers related to his theory of defense. The informal give-and-take between the parties which normally takes place during pretrial stages of criminal cases never occurred and issues have remained unresolved.

 The Court has attempted to remove these obstacles by its decision, announced in open court on June 23, 1988, and not opposed by Independent Counsel, to hear North's counsel at an in camera, ex parte hearing for the sole purpose of becoming more precisely informed as to the details of North's proposed defense, as it relates to his demand for access to classified materials the government has indicated it will refuse to release publicly, and materials which the government has already redacted from its proposed proof and apparently considers wholly irrelevant and immaterial.

 At the in camera, ex parte hearing, *fn2" on July 6, 1988, which lasted over four hours, North's counsel particularized and illustrated by reference to specific documents his need for certain classified material not included in the government's case-in-chief, and illustrated how some of the material tended to exonerate North of guilt on certain charges. He also demonstrated how his theory of the defense requires use of redacted portions of the government's case.

 After considering counsel's representations the Court has concluded that:

 (A) The government has redacted certain information from its documentary case-in-chief which must be available to North for his use at trial.

 (B) The Court is also satisfied that some defense discovery claims, supported by information presented to the Court, may be sufficiently pertinent to require disclosure of other classified documents previously sought under North's supplemental discovery request (Defendants' Joint Pretrial Motion No. 12).

 North contends that money raised by Secord and Hakim from the sale of missiles to Iran was combined in private accounts with money received from foreign governments and private donations. In turn, the combined funds were used to plan and carry out various covert operations, including actions directly or indirectly supporting the contras. Further, he contends that these initiatives were all approved at or near cabinet level; their execution was closely monitored through the use of a variety of intelligence methods and sources -- sometimes at the specific request of North -- and were made generally known to North's superiors through a variety of means. Thus he will submit that his activities were known and authorized and he seeks material that will reinforce this position. Among materials sought are documents bearing primarily on issues of criminal intent, which is of particular significance to the first three counts of the indictment. The materials he seeks -- even if not a "smoking gun" -- may serve to corroborate testimony of defense witnesses, including North ...


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