Top-Secret Strategy

By GEORGE J. CHURCH

Yes, Virginia, there will be an Ollie North trial. Or at least one will start this week. But don't bet the ranch that it will go all the way to a jury verdict, or even produce much dramatic testimony.

Instead, look for constant repetition of this sequence: North's combative attorney, Brendan Sullivan, tries to introduce in evidence a secret document that supports his client's claim to have acted only under orders from higher authority or merely followed routine Administration policy regarding covert activity. Prosecutor John Keker, on behalf of independent counsel Lawrence Walsh, objects, arguing that release of the document would damage national security. Judge Gerhard Gesell sends the jury out of the courtroom and summons ) opposing counsel to a conference. Perhaps the issue can be resolved there, but quite possibly the trial is suspended while the opposing sides try to work out a deal allowing a sanitized version of the document to be introduced. If they succeed, the trial resumes; if not, the proceedings are halted while Attorney General Dick Thornburgh considers whether the document can be declassified. If Thornburgh says no, the trial could end. If the answer is yes, the proceedings continue but are broken again by the same sequence the next day, and twice the following week, and so on. It becomes precisely the "cuckoo-clock trial" (interrupted every hour) that Gesell has long publicly feared.

The clock was going "cuckoo" even before the trial began. Late last week defense, prosecution and judge were locked in a quarrel over material that Sullivan may want to use right off the bat. He claims that secret documents show that Ronald Reagan and other members of his Administration -- among them Secretary of State George Shultz, Secretary of Defense Caspar Weinberger, National Security Adviser Robert McFarlane, CIA Director William Casey and Joint Chiefs of Staff Chairman General John Vessey -- "personally and directly" took part in arranging deals to have other countries aid the Nicaraguan contras at a time when help from the U.S. was forbidden by law; they then allegedly ordered the arrangements kept secret. Sullivan hopes to show with this classified material that North was just following orders when he lied to Congress about his contra activities.

Prosecutors insisted that disclosure of the documents would hurt national security. They offered to make available a summary of the documents, but Sullivan objected that it "omits critical details." On Friday, Gesell nonetheless accepted the prosecution's offer and, with that settled, designated Tuesday as the date for the trial to start. But the fracas exemplifies the kind of dispute that may interrupt the trial again and again.

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.

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.

With reporting by Steven Holmes/Washington