The opinion of the court was delivered by: GESELL
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.
Pursuant to the Court's pretrial responsibilities under CIPA, it directed North on November 23, 1988 to file a written statement of relevant and material testimony he expects to disclose or cause to be disclosed in his defense.
North responded, over objection, attaching a Warning Notice
to a narrative statement of classified information he desires to use or present at trial. This document consists of 162 typewritten pages and, as directed by the Court, was filed ex parte under seal.
The Court now confronts a need to disclose this narrative to Independent Counsel for pretrial processing as required by Sections 5 and 6 of CIPA -- a course of action which North vigorously resists on the ground that this requirement is unconstitutional and violates his rights under the Fifth and Sixth Amendments.
The Court has closely examined the narrative statement in the light of its knowledge of the issues and proof gained over approximately ten months of intense pretrial activity. The nature of the notice is indicated below:
(1) A substantial portion of the narrative statement contains relevant and material facts and information of value to the defendant, which may be presented eventually in testimony or which may be used during cross-examination of government witnesses.
(2) Some of the facts noted in the narrative statement are known to Independent Counsel and some are immaterial. However, the statement contains references to many pertinent facts and circumstances which the Court believes are likely to alert Independent Counsel to aspects of issues not previously brought to his attention.
(3) The narrative statement, while somewhat evidentiary in character, does not indicate which individuals mentioned will be witnesses, nor does it develop in any detail how most the facts mentioned will be proven.
(4) The narrative statement does not tie the information to any particular count in which North is charged or undertake to support statements by documentation found in North's own case or in papers disclosed to him by the government during the elaborate documentary discovery.
(5) The narrative statement is by its very nature only partially revealing because it makes no reference, of course, to related nonclassified proof which could place the classified information noticed into clearer perspective or significance.
(6) The narrative statement does not commit North to call any witness and does not identify any witnesses.
(7) In no way does the narrative represent, directly or indirectly, that North himself will or will not testify; when he may testify, if he does; or what he would testify about if he were to testify.
Given these circumstances, the Court has determined that immediate processing of the narrative statement under CIPA is ...