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No More Frivolous National Security Claims, North Trial Judge Says

March 7, 1989

WASHINGTON (AP) _ Judge Gerhard A. Gesell, irritated by repeated interruptions of Oliver North’s trial by claims that national security was about to be violated, warns lawyers in a blistering memo that he will no longer honor claims he considers frivolous.

In an order late Monday dismissing a North contention that prosecutors were guilty of misconduct, Gesell blamed many of the problems in handling secret documents on the Bush administration.

The North trial was in recess Tuesday because of snow and freezing rain.

It has become clear, Gesell said in the written order, that many documents were classified only for purposes of the North trial, now in its fifth week, when they were not deemed secret before.

Not that they all should be out in the open, the U.S. District judge added.

″It is now abundantly clear that many documents that should have been classified from the outset were not classified in any way, at certain agencies such as the National Security Council and Department of State,″ he wrote.

No effort was made to follow rules set down for classification and ″this has resulted in a haphazard process of review of nonclassified materials to determine what can now be released publicly,″ he said.

Triggering the judge’s ire was an instance last month while Robert Owen, North’s courier to the rebels fighting the Nicaraguan government, was being questioned. During questioning about letters Owen had written to North, prosecutors used versions of the letters with some names and places censored.

But it turned out that uncensored versions of the memos long ago had been turned over by Owen’s lawyer to a private group, the Christic Institute, which was involved in a lawsuit, and that the prosecution had known about it for two weeks. The Institute made the uncut documents available to news organizations.

Owen’s lawyer said he had told prosecutors on Feb. 10 in the office of independent counsel Lawrence Walsh about the memos becoming public. Informed at the time were office security chief Allen Stansbury, prosecutor Michael Bromwich and another attorney in the office. Stansbury asked Owen’s lawyer to turn over the memos, but he refused and no one in Walsh’s office took any further action until the Christic Institute announced its intention to publicize the uncensored text.

Stansbury ″made only a half-hearted attempt to retrieve copies of the memoranda,″ said Gesell. ″He made no attempt to retrieve them from the Christic Institute. ... He became uncertain and confused. His boss at the Department of Justice was out of town and he simply did not act. ... He proved incompetent for the task assigned to him.″

Bromwich, too, was to blame, said Gesell, for letting the matter slip his mind but ″he had no purpose to conceal or to mislead.″

The whole brouhaha, said Gesell, illustrates a problem ″which continues to plague the course of the trial″ - how to apply the law which governs handling of secret material in court.

While an interagency group has worked on classifying and declassifying documents for trial, he said, it has at the same time created uncertainty about the status of many papers.

″It leads to the often absurd situation where the press is accurately reporting information in the public domain while the court is confronted with representations that the same facts must never be officially acknowledged,′ ′ he said.

Gesell called attention to an appeals court decision in another case this year that district courts can ignore claims of classification that are frivolous.

Should the occasion warrant, said Gesell, he will do just that.

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