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- <text id=89TT0173>
- <title>
- Jan. 16, 1989: Giving In To "Graymail"
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1989
- Jan. 16, 1989 Donald Trump
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- NATION, Page 24
- Giving In to "Graymail"
- </hdr><body>
- <p>North's legal strategy decreases the hope for a full airing of
- the Iran-contra scandal
- </p>
- <p> Ever since the fiasco first popped into the headlines in
- 1986, millions of Americans have awaited a full exposition of
- the Iran-contra affair. They whetted their palates with
- appetizers from the Tower commission and sat with rapt
- attention through 13 weeks of televised congressional hearings,
- confident they were experiencing only a first course of the full
- meal that would follow when special prosecutor Lawrence Walsh
- brought Lieut. Colonel Oliver North and three alleged
- co-conspirators to trial.
- </p>
- <p> Last week the public learned that its appetite for a
- complete explanation of the affair -- and a judgment of who was
- at fault -- will probably go forever unfulfilled. After
- spending nearly 25 months and an estimated $13 million
- investigating North's role in the illegal diversion of profits
- from a secret Iranian arms sale to the Nicaraguan contras, Walsh
- suddenly moved to drop the most serious charges against the
- former National Security Council staffer. The independent
- counsel's action made it all but certain that the total
- dimensions of the scandal will never be aired in court.
- </p>
- <p> Walsh gave one big reason for asking U.S. District Court
- Judge Gerhard Gesell to dismiss charges of conspiracy and theft
- of Government property against the ex-Marine: intractable
- problems in protecting classified information contained in
- documents that both the prosecution and the defense have said
- are essential to their efforts. Said Walsh: "A continuing
- problem in the case has been the protection of
- national-security information in light of this defendant's
- insistence on disclosing large quantities of such information
- at trial." Gesell is likely to approve Walsh's request this
- week.
- </p>
- <p> The special prosecutor's surrender marked a victory for what
- some experts see as North's strategy of legal "graymail," in
- which he threatened to reveal some of the nation's most closely
- guarded secrets if the case against him was pressed. He has
- applied additional pressure on the White House in the past two
- weeks by subpoenaing as defense witnesses at least 35 current
- and former Administration officials, including President Ronald
- Reagan and President-elect George Bush. If they refuse to
- testify on the grounds of national security or Executive
- privilege, North could argue that he is being denied a fair
- trial. Walsh's capitulation is likely to relieve Reagan and
- Bush of the need to appear. Since their testimony would relate
- mainly to the conspiracy charges, Justice Department officials
- are confident the subpoenas can be quashed.
- </p>
- <p> North still stands accused of a dozen felonies, ranging from
- pocketing money given to him by contra leader Adolfo Calero that
- was intended to help obtain release of American hostages in
- Lebanon to obstructing a presidential inquiry and lying to
- congressional committees, offenses for which he could be
- imprisoned for 60 years and fined $3 million. His lawyers
- nevertheless boasted that they had crippled the prosecution.
- Crowed North's chief counsel, Brendan Sullivan Jr.: "The heart
- of its case is destroyed." He hinted that North would continue
- to use the tactics that had forced dismissal of the theft and
- conspiracy counts, declaring that Walsh "refuses to recognize
- that classified information pervades the remaining charges as
- well."
- </p>
- <p> Walsh's effort to try North on the broad charge of
- conspiracy was probably doomed from the start. For months the
- special prosecutor navigated between the fears of the
- intelligence community that North would expose secrets and
- Gesell's insistence that North be given great latitude in his
- use of evidence. Walsh's defeat became inevitable last month
- when Gesell laid down rules for handling the secret data
- contained in the 300 classified documents the special
- prosecutor had planned to use. The judge would permit excision
- of the covert sources and methods by which the data were
- obtained. However, the information itself had to be presented
- virtually verbatim at trial.
- </p>
- <p> Intelligence officials feared that exposure of intercepted
- messages could tip off a hostile power that its communications
- channels had been penetrated. Though Walsh promised to avoid
- unneeded exposure of secrets during the trial, there was no way
- he could ensure that North would do the same. The New York Times
- reported last week that on Dec. 21 a high-ranking review board,
- which included Secretary of Defense Frank Carlucci, Secretary
- of State George Shultz, CIA Director William Webster and
- National Security Adviser Colin Powell, refused to release key
- classified documents covered by Gesell's order even though Walsh
- had warned that such actions would undercut the prosecution.
- </p>
- <p> To salvage his case, Walsh appealed to Gesell to modify his
- directive. The judge turned him down last week, leaving the
- prosecutor with little alternative to dropping the theft and
- conspiracy counts. The dismissal of those charges makes it
- virtually certain that Walsh will withdraw similar accusations
- against former National Security Adviser John Poindexter,
- retired Air Force General Richard Secord and businessman Albert
- Hakim, though they too still face a range of charges such as
- obstructing Congress and offering illegal gratuities to North.
- </p>
- <p> Legal experts are divided on whether the narrower case
- against North will have better odds for conviction. North's
- threat to use graymail against the remaining charges could
- backfire, according to some lawyers. "Right now Oliver North is
- not viewed as a graymailer; he is viewed as a patriot," says
- former Watergate assistant prosecutor Richard Ben-Veniste. That
- outlook could change, Ben-Veniste suggests, as the focus of the
- case shifts from the unauthorized conduct of foreign policy to
- the seedier allegations of shredding documents, lying to
- Congress and diverting money for North's own use.
- </p>
- <p> President Reagan pronounced that Walsh's decision "satisfies
- our problem, which has been . . . concern about national
- security." Reagan's critics claim that the President, who has
- praised North as a "national hero," may have let the ex-Marine
- off the hook without taking the politically risky step of
- formally pardoning him. Late last week Senate Majority Leader
- George Mitchell indicated that he wanted a Senate committee
- review of Walsh's decision. Already the judge has postponed the
- planned Jan. 31 start of the trial in the wake of these new
- developments. If the rest of Walsh's case collapses, the most
- embarrassing scandal of Reagan's presidency will end as it
- began -- in confusion and controversy.
- </p>
-
- </body></article>
- </text>
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