Top-Secret Strategy

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Delays and interruptions are not the only prosecution worries. At any point Thornburgh could use his authority under a 1980 law to forbid disclosure of documents that Judge Gesell concludes the jury really does have to see. The judge would then have to dismiss some or all of the dozen charges against North, which together carry a maximum penalty of 60 years in prison and $3 million in fines. At the extreme, North could walk free. Alternatively, he might escape the weightier charges of lying to Congress, obstructing an investigation and shredding Government documents and be tried on only the less dramatic charges of accepting an illegal gift and diverting to personal use $4,300 that was supposed to go to the contras. Says Georgetown University Law Professor Paul Rothstein: "We had what promised to be a huge herd of trumpeting elephants, a trial with really dramatic testimony. Now it may dwindle down to a mouse squeak."

Even that, however, marks some progress: at times last week it seemed as if the trial would never start at all. It had already been delayed for five months beyond its first tentative date by the endless dispute about secret documents. Finally an agreement permitted the selection of jurors. Then, just as the last jurors were being chosen, the Justice Department moved in with yet another objection.

Justice attorneys apparently reflected alarm in the CIA and the National Security Agency over a January ruling by Gesell. The judge had said he would allow North to introduce some classified information "without benefit of a further ruling" and to bring in still more on cross-examination of Government witnesses "if the court finds it appropriate." To the security agencies, which generally object to declassification of any secrets whatever, that sounded like an open invitation to spill the beans on all sorts of potentially damaging (or at least embarrassing) information. They prevailed on Thornburgh to press Walsh to appeal the ruling. When Walsh refused, Thornburgh asked the Supreme Court to put off the trial while he attempted to tighten the rules on what evidence could be introduced.

A week of arcane wrangling ensued, at last ending in what Judge Gesell called a "treaty" between the Justice Department and the independent counsel's office. They identified eight general categories of deep secrets, promptly dubbed the "drop-dead list," some elements of which are deemed so exceedingly secret that officials dare not even speak their names. If any documents or testimony relating to a subject on the drop-dead list seemed likely to come up, the trial would halt while all parties tried to settle the question behind closed doors. If Gesell ruled that specific information was essential to North's defense, prosecutors would have three options. They could prepare a paraphrased summary, release a censored version of the document with portions blacked out, or simply admit without argument to allegations made by the defense.

- The agreement has its peculiarities. Gesell pointed out that it might push the prosecution into falsely implying that one of its witnesses lied. That could be the price of keeping secret a document proving that the witness had told the truth. "Is that what you're suggesting?" the judge asked a Justice Department attorney. The answer, in effect: well . . . er . . . uh . . . yes.