B. CIPA's required pre-trial disclosure to Independent Counsel cannot be modified because this is not a case where limited classified information is only an incidental part of the case and disclosure could perhaps be deferred. Rather, in this instance classified information surrounds and immerses the entire case for both sides.
C. Trial is set to commence January 31, 1989.
North's constitutional claims lack merit. No further hearing is necessary. North has previously briefed the issues and there has been full argument in connection with his motion to declare CIPA unconstitutional on its face and as applied.
As to the Fifth Amendment due process claim, modern pretrial practice in complex criminal cases contemplates extensive pretrial disclosures by the parties in the interests of ascertaining the truth. Recent decisions of the Supreme Court as well as the Federal Rules of Criminal Procedure make this abundantly clear. See, e.g., United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975); Wardius v. Oregon, 412 U.S. 470, 473, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973); Fed. R. Crim.P. 12.1, 12.2, 16, 32(c)(3)(A),(C). North has had access to approximately 900,000 pages of government documents; the classified documents the government will use against him have been identified, as have the witnesses; and North will receive all Jencks material, including grand jury testimony, two weeks before trial. The prosecution has recently filed several memoranda narrowing the issues in the case and explicating some aspects of its theory of the case. In addition, over several days of CIPA § 6 hearings, at which defense counsel were present, the Independent Counsel explained the significance to its theory of the case of many of the classified documents in its case-in-chief, and Independent Counsel responded frankly to the Court's numerous inquiries about its case. The Court cannot accede to North's view of due process that he is entitled to get everything and to disclose nothing. Due process is an even-handed concept and this claim is rejected.
As to North's Sixth Amendment claim, disclosure involves no significant interference or substantial prejudice to North's right to the effective assistance of counsel. His attorneys are still free to call or not to call any witness and equally free to determine what questions to ask or not to ask. The tactical disadvantage that may accrue by minimizing surprise is slight. Government witnesses cannot readily adjust or coordinate their testimony to meet the defense, as North suggests, because they are committed under oath and otherwise to their positions. Moreover, the federal courts have long recognized that a degree of defense disclosure is necessary to prevent introduction of vital or unexpected proof, which has a tendency to force adjournment delay to permit investigation or to resolve new legal problems presented. Williams v. Florida, 399 U.S. 78, 80-86, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970). It is the Court's obligation to assure issues are delineated before trial commences. See, Fed.R.Crim.P. 17.1. The fact that the alleged violations in this instance occurred behind the screen of classification over a period of time should not place this defendant in any different position; indeed, it enhances the need for pretrial disclosure by the defense.
North has by his Warning Notice apparently anticipated this ruling and has indicated he desires to seek relief by some kind of application to the Court of Appeals. The Court has given no consideration to the merits, or lack of merit, of such an application. It will, however, delay transmitting the narrative statement to Independent Counsel.
Accordingly, defendant North and his counsel are hereby notified that the narrative statement will be transmitted to Independent Counsel under seal by 4:00 p.m. on January 3, 1989 for processing by Independent Counsel and consideration by the Attorney General, where appropriate under CIPA. Independent Counsel shall submit proposed redactions and substitutions in camera on or before January 11, 1989.
December 23, 1988.
Upon consideration of the Motion of the Government for Issuance of a Subpoena Pursuant to Federal Rule of Criminal Procedure 17 (C), filed December 22, 1988, it is hereby
ORDERED that defendant North shall by January 18, 1989, either produce or object to the production of the following documents:
Spiral bound stenographer's notebooks used by Oliver L. North from February 1983 up to and including November 25, 1986.
If objection is made, the Court will hear the matter at 9:30 a.m. on January 25, 1989; and it is further
ORDERED that, in view of the fact that January 20, 1989 is Inauguration Day, the deadline set forth in the Court's December 22, 1988 Order requiring objections to subpoenas to be filed by January 20 is extended until January 23 at 9:30, and the Court will hear any and all objections on January 25, 1989, at 9:30 a.m.
ATTACHMENT TO APPENDIX A
(EX PARTE, UNDER SEAL)
(CONTAINS CLASSIFIED INFORMATION)
THIS PLEADING CONTAINS DEFENSE WORK PRODUCT PROVIDED TO THE COURT ONLY OVER DEFENSE OBJECTIONS.
DEFENDANT OBJECTS TO ANY REPRODUCTION OR DISCLOSURE OF THE CONTENTS OF THIS WORK PRODUCT. DISCLOSURE WILL VIOLATE DEFENDANT'S CONSTITUTIONAL RIGHTS.