Tangled North Case

A criminal trial is supposed to be a search for the truth, an opportunity for 12 jurors--surrogates for the rest of the citizenry--to weigh the evidence against the accused and decide whether to believe him or his accusers. Unfortunately, in the case of the United States of America vs. Oliver L. North, the process of getting at the truth has been thwarted forever by the independent counsel’s decision to drop the two major charges against him. Although North still stands accused of a dozen lesser crimes that could land him in jail for up to 60 years, much of the evidence that has been compiled about his reckless campaign to fund the Nicaraguan Contras with the profits from the sale of U.S. arms to Iran will never be aired. And that can only frustrate everyone who genuinely cares about the truth.

Inevitably, conspiracies will be seen in independent counsel Lawrence E. Walsh’s motion to dismiss the charges of conspiracy and theft of government property because, he said, they could not be tried without compromising national security. Dropping those counts amounts to “a pocket pardon,” an attempt to do indirectly what President Reagan could not do directly, charged the People for the American Way. Because Walsh’s motion came within days of North’s move to subpoena Reagan and President-elect George Bush as defense witnesses, there is speculation that they blocked the disclosure of classified documents to avoid long days on the witness stand or a protracted fight over executive privilege or both. And some critics have accused the intelligence agencies of thwarting the investigation to cover up telephone intercepts, bribes and other operations that they might have trouble justifying.

And yet, however intriguing the conspiracy theories, there is scant evidence to support any of them. The initial refusal to release classified documents on the terms established by U.S. District Judge Gerhard A. Gesell came not from the White House but from an interagency group of intelligence experts, some of whom have been openly critical of North. Gesell had ruled that those documents could be partly sanitized to protect some intelligence sources and covert operations, but he was adamant that, for North to receive a fair trial, the government should identify the countries with which he dealt and specify the ranks and responsibilities of foreign officials mentioned in the documents. And the interagency panel was just as adamant that such matters could not be made public without jeopardizing U.S. interests abroad. Independent counsel Walsh, very much the man in the middle of this tug-of-war between the Administration and Judge Gesell, struggled for months to find a compromise. An upright former judge and president of the American Bar Assn., Walsh very much wanted to try North on all the charges but finally conceded defeat. The motion that he filed to dismiss the two major counts was tinged with regret.

Should Gesell have given in to the demands of the interagency group and fully censored the documents? Were the intelligence experts overly protective and too quick to see potential harm to the national interest in the documents sought by the prosecution and the defense? Has the Reagan Administration twisted the Classified Information Procedures Act to protect North, one of its own? Or was the government tied up in knots by North’s ingenious defense lawyer, Brendan V. Sullivan Jr., who knew that basing a defense on top-secret documents was the surest way to torpedo the prosecution?

It is easier to pose those questions than to answer them. Because the cloak of national security envelops this case, the public may never get satisfactory answers. And, while North will stand trial on felony charges of obstructing justice, destroying evidence and lying to Congress, Americans will be denied the full story of his involvement in the Iran-Contra episode. His guilt or innocence, like that of former President Richard M. Nixon in the Watergate scandal, will be one of those matters debated for years to come, without any real resolution. Being denied the truth is frustrating, but that is the price to be paid for a system of justice that mandates due process for all criminal defendants, even the most notorious.