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December 12, 1988


Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL



 North's counsel, for the second time, has failed to comply with a written Order of this Court directing North to file a notice pursuant to Section 5 of the Classified Information Procedures Act ("CIPA") particularizing his need to have available for public use at trial such classified document material obtained from the government that North considers relevant and material for his defense. As a consequence, Independent Counsel, on behalf of the government, has moved to deprive North of any use of such classified information due to his continued refusal to comply with the Court's pretrial Orders governing this aspect of the trial. Before ruling on this preclusion motion, which has been fully briefed, it is necessary to review the circumstances under which counsel's recalcitrance has occurred.

 The indictment was returned March 16, 1988. From the very outset of the extensive pretrial proceedings which have since occurred, the Court and counsel on both sides have recognized two major difficulties that needed definitive resolution before the case could proceed to trial: first, obstacles that might have been created due to congressional awards of use immunity pre-indictment to three of the four defendants *fn1" and, second, obstacles presented by the obvious fact that many documents relating to issues in the case were classified and withheld from public disclosure in the interests of national security. The present motion comes near the culmination of this Court's efforts to resolve these second obstacles by implementing CIPA so that relevant and material information in previously classified documents reasonably required for trial can be made available in appropriate form.

 Among other things, CIPA sets out the conditions under which a defendant can have access to and use classified material at trial. It implicitly assures a defendant that relevant and material classified information required for his defense may not be withheld provided certain statutory procedures are followed. As early as April 29, 1988, all defendants filed a joint motion seeking a declaration that CIPA is unconstitutional *fn2" both on its face and, more specifically, as applied in this case because its processes would allegedly deprive defendants, including North, of a fair trial as guaranteed by the Constitution.

 In its preliminary consideration of this motion, the Court resolved a number of North's objections by interpreting CIPA in a manner consistent with congressional assurances that the statute should be broadly interpreted in the interests of a fair trial. *fn3" Thus, the Court refused (1) to monitor opening statements or closing statements of defense counsel in advance, and (2) to subject North's own testimony or that of witnesses he may call to scrutiny in advance. The Court also recognized the need to preserve some flexibility when applying the statute so that unexpected developments would not foreclose a proper defense, and it emphasized its desire to afford each defendant full access to relevant and material classified papers, stating,

Strict application of the statute to this proceeding would not only be difficult, but impossible to accomplish consistent with a fair and expeditious resolution of this case. . . . Some of the witnesses and defendants, particularly defendant North, operated from secure locations in the White House with full access to the most sensitive information and most critical national security intelligence methods and sources available to the government. This information, and even some methods and sources, are inextricably enmeshed in the events challenged by the indictment. Approximately 50,000 pages of "core" documents so designated by the prosecution as being of possible relevance and materiality are being made available to the defendants in camera, and the bulk still remain classified in whole or in part. (Footnote omitted.) Other documents presenting classification problems are still forthcoming under the Court's broad discovery Order. . . . Id., at 7.
. . . [Congress] emphasized that the Court should not undertake to balance the national security interests of the government against the rights of the defendant but rather that in the end remedies and sanctions against the government must be designed to make the defendant whole again. (Citation omitted.) Thus while a limited opportunity for creative judicial adjustment of CIPA procedures exists, in the end, defendant's constitutional rights must control. Id., at 9.
The Court has determined that many of these [North's] concerns can hopefully be avoided by applying pretrial procedures consistent with the congressional intent underlying CIPA. A way must be found to preserve defendant's constitutional rights that still affords adequate protection for national security concerns. Id., at 11-12.

 In April, The Court recognized that it would be impossible to determine then how application of CIPA to the classified documentary materials might or might not create constitutional obstacles to fair trial. Accordingly, it left open final resolution of the motion until the process outlined by Sections 5 and 6 of CIPA had run its course. Obviously a degree of cooperation and responsible lawyering was contemplated.

 Thereafter, on many different occasions, the Court sought to facilitate an on-going declassification process and to encourage the fullest disclosure to North of pertinent papers in full text. *fn4" Indeed, the focus of the pretrial efforts has for several months increasingly centered primarily on classified documents. Independent Counsel provided North with the documents he intended to introduce at trial in the case-in-chief, noting certain redactions. In addition, Independent Counsel turned over to North thousands of other documents developed during Independent Counsel's inquiry. North was also advised of the witnesses Independent Counsel intended to call at the trial. A committee representing Executive agencies *fn5" charged with responsibility to declassify relevant materials worked energetically, almost around the clock, and released increasing amounts of text from classification restrictions.

 The fullest disclosure to North was encouraged. North was placed in a unique position not required by CIPA and perhaps never so generously awarded any federal criminal defendant faced with a need to use classified documents at trial. North in almost every instance was provided the full language and text of the classified documents, including the portions still deemed classified. Unlike defendants and their attorneys in other cases, he has not been in the position of guessing the content of material withheld by classification. He knows in actual text what the government is seeking to maintain classified. Thus, he has been fully equipped to decide, along with his counsel, whether or not detail in still classified papers or redacted portions are relevant and material for his defense.

 This massive, generous pretrial disclosure has from the outset been designed to expedite CIPA procedures and assure a fair trial. North has been aware from the outset that he would be required to designate from this mass of papers the papers he considers relevant and material to his defense and needed for his defense at trial.

 When his counsel indicated that North desired papers in addition to what had been provided voluntarily or otherwise by Independent Counsel, the Court took a rare step, with the consent of Independent Counsel. On July 6, 1988, the Court heard North and his counsel at an ex parte, in camera hearing where aspects of North's defense were revealed. As a result of that proceeding, without giving Independent Counsel even an opportunity to be heard, the Court ordered extensive discovery on July 8, 1988. This discovery was carried out with considerable and perhaps unprecedented expenditure of time and resources to meet North's discovery demands. *fn6"

 North's counsel has had prior experience with the operations of CIPA *fn7" and is fully acquainted with its requirements and its legislative history. Because of his long involvement with the defendant, starting well before the indictment, he was undoubtedly acquainted with the most intimate details of North's defense for many months. Thus, there was no doubt in the Court's mind that he was aware that efforts to distort CIPA by "graymail" *fn8" would not be permitted. Congress and other courts have condemned this defense tactic, and counsel was required as an officer of the Court to proceed in good faith. The Court noted its expectations as early as the first major CIPA Order, stating: "Counsel for North, by reason of his client's past employment and prior proceedings in the Iran-contra matter, is well aware of classified procedures and the events in issue and thus is unusually qualified to provide a precise, highly particularized notice." (Memorandum and Preliminary Order Re CIPA, filed June 22, 1988, 698 F. Supp. at 320).

 The Court recognized that the time would come when it would be required in a series of in camera hearings to make determinations as to relevance and materiality of classified information North would notice under CIPA § 5, which states in part:

(b) Failure to comply
If the defendant fails to comply with the requirements of subsection (a) the court may preclude disclosure of any classified information not made the subject of notification and may prohibit the examination by the defendant of any witness with respect to any such information.

 With statutory requirements in mind, the Court repeatedly indicated to counsel and ultimately issued Orders requiring North's CIPA § 5 notice to be limited to classified portions that North considered relevant and material to his defense. The statute's text makes relevance and materiality a threshold matter for the defense: Section 5 opens by providing for notice of documents defendant reasonably expects to disclose or cause to be disclosed at trial. This of course is common sense: the Court need not waste its time reviewing whether a ...

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