Top-Secret Strategy

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Nonetheless, Gesell accepted the accord, Thornburgh got the Supreme Court to vacate the stay he had requested, and everything seemed set for the trial to begin. But hardly to run smoothly: the North defense can be expected to seize every opportunity to delay or perhaps scuttle the trial. And such opportunities will be legion. Lawyer Sullivan ("I'm not a potted plant") has asserted that classified information "pervades" the charges against North. The heart of his defense is that North acted solely on orders from, or at least with the permission of, higher authority -- and that the orders or permission was spelled out only in secret papers.

North's strategy, it seems, is to threaten to disclose embarrassing secrets if the Government will not drop the trial. In the bitter words of Robin Ross, chief aide to Attorney General Thornburgh, "This great American hero is graymailing the Government. This is the guy who stood up in his Marine Corps uniform and all his medals, and now he is sticking it to the Government with an advantage ((knowledge of secrets)) he got through service to his country."

Judge Gesell could rule that many secret papers are not vital to North's defense. But even then, North and Sullivan would not necessarily lose. Constant interruptions by the prosecutors could confuse the jurors, and repeated refusals to allow secret documents into evidence could anger them. Says Professor Rothstein: "Whenever jurors . . . feel that a substantial amount of information is being kept from them, they are reluctant to find the defendant guilty. The more it can be made obvious that information is being shut off by the Government, the more Brendan Sullivan can claim, 'Ladies and gentlemen, they are putting blinders on you.' "

Besides, by failing in many efforts to introduce classified documents, Sullivan would be building grounds for an appeal if North is convicted. Probable contention: the 1980 Classified Information Procedures Act, which gives the Attorney General the power to keep secret documents out of trials, is unconstitutional because it deprived North of a fair trial. If it took an inordinate amount of time to get the North trial started, bringing the proceedings to a conclusion may take a good deal longer still.