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TIME: Almanac 1990
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1990 Time Magazine Compact Almanac, The (1991)(Time).iso
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time
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011689
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01168900.047
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1990-09-17
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NATION, Page 24Giving In to "Graymail"North's legal strategy decreases the hope for a full airing ofthe Iran-contra scandal
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.