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UNITED STATES v. NORTH

January 19, 1989

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

 Pursuant to Section 5 of the Classified Information Procedures Act ("CIPA") and prior Orders of the Court, North has noticed 300 classified documents *fn1" contained in two large boxes, indicating the count or counts of the indictment to which each document allegedly relates. (Defendant's Fourth CIPA § 5 Notice). He has also noticed a 162-page narrative statement which purports to summarize bits of classified information which he expects the defense will elicit in testimony. (Defendant's Third Notice Pursuant to Section 5 of CIPA (Testimony)). The narrative weaves together classified information relating to hundreds of topics or incidents, often in a rather disjointed fashion, and, because he was not ordered to do so, North does not tie this classified information to particular counts.

 After examining the classified documentary and testimonial material, the Court has in most cases been unable to determine why North believes a particular document is relevant and material to the remaining counts. The government has indicated both orally and in writing its inability to relate the documentary materials to its understanding of the issues in the case.

 During the course of two CIPA § 6 in camera hearings, the Court solicited the assistance of North's counsel in an effort to resolve questions of possible admissibility raised by the notices. Although North and his counsel have for some time been in possession of the full text of each of these classified documents, they have remained, in spite of the Court's urging, unwilling to advise the government, except occasionally in the most generalized terms, why they believe that a particular document or portion of a document is relevant, material and required in defending the case. North has continued to insist that without his assistance the government must review this mass of material, line-by-line or word-by-word, indicating the extent to which the government will contend that a particular portion of each document and proposed testimony should not publicly be disclosed in the interests of protecting national security. Such designations would, in turn, generate a protracted discussion as to whether each segment withheld could be presented in a satisfactory substitute form, and this would be followed by a long series of rulings as to relevance and materiality.

 Against this background, it should be emphasized that North's CIPA § 5 notices of documents and testimony were prepared and filed at a time when the broad conspiracy allegations of Count One and Count Two were still in the case, and it is obvious that much of the material noticed was of primary significance to these counts and often only tangentially -- if at all -- related to other counts. Nonetheless, the Court was unable to persuade North to abandon or adjust his adamant position.

 Confronted with the resulting legal gridlock as outlined above, the Court has determined to follow a course of action which looks toward final resolution of the questions of admissibility presented by the notices during trial rather than at pretrial. This approach is being taken in part because a trial is definitely scheduled to commence January 31, 1989 after lengthy postponements due to discovery and prior attempts to resolve CIPA problems pretrial; because trial subpoenas ad testificandum and duces tecum have been issued; and because even if the defense position could be clarified by protracted pretrial activity, developments at trial would undoubtedly change the basis on which pretrial rulings were reached.

 General Categories

 After considering the representations of counsel in the in camera hearings and personally examining the CIPA § 5 material, the Court will, accordingly, indicate in general terms categories of information in the notices it believes should be available to the defense, if any such information exists in the materials, and, conversely, it will indicate the information that may not be mentioned by defense counsel or brought into the trial in any way except without benefit of a further ruling. All references below are limited to classified information. Unclassified information is not involved.

 The defendant may introduce, without prior Order of the Court:

 (I) Information showing or tending to show that the chronology was correct as to the entry of any item the government claims was incorrect. (Counts 13, 14, 16)

 (II) Information showing or tending to show any statement North made during the inquiry by the Attorney General which the government claims was false was in fact correct. (Counts 14, 15)

 (III) Information showing or tending to show any statement made in response to a congressional inquiry which the government claims was false was in fact correct. (Counts 4-7, 9, 13)

 (IV) Information showing or tending to show any order, directive, instruction or regulation North claims required or compelled him to respond falsely to any challenged statement ...


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