Thornburgh Is Misled, Walsh Forces Contend

WASHINGTON —  A source close to independent counsel Lawrence E. Walsh voiced concern Saturday that Atty. Gen. Dick Thornburgh has been misinformed by intelligence agencies that have exaggerated the risks of disclosing classified information at Oliver L. North’s trial.

Taking sharp issue with Thornburgh’s eleventh-hour attempt to delay North’s trial in order to settle issues over classified materials, the source said it “is tantamount to either firing the independent counsel or making him a minion of the Justice Department.”

Threat to Independence

The source, declining to be identified by name or position, said Thornburgh’s action “totally compromises” Walsh’s independence.

Everything identified as highly sensitive by the intelligence agencies has been covered by U.S. District Judge Gerhard A. Gesell’s pretrial orders barring use of the information until further ruling by the court, with the government having a chance to object, the source said.

Senior Justice Department officials, who also declined to be named, disputed the criticism by the source in Walsh’s office, contending that Thornburgh “has done nothing to compromise” Walsh’s integrity and stating that discus sions were continuing to reach a settlement.

The extraordinary exchange marked the sharpest clash between an Administration and an outside prosecutor since October, 1973, when former President Richard M. Nixon ordered the firing of Watergate special prosecutor Archibald Cox--an event that came to be known as the Saturday Night Massacre.

The difference in positions was apparent in the papers Thornburgh and Walsh filed with the Supreme Court on Saturday. The independent counsel’s was titled: “Dick Thornburgh, Attorney General v. Lawrence E. Walsh,” while Thornburgh’s was headed: “United States of America v. Oliver North.”

The source close to Walsh branded as “false” Thornburgh’s assertion to the Supreme Court on Saturday that one specific area of evidence in which a clarification from Gesell is being sought “is not . . . the only one in which disclosure is threatened.”

“It’s our belief, based on any reasonable reading of the orders the judge has issued under the Classified Information Procedures Act that those statements are incorrect, false,” the source said.

The agencies most nervous about damaging disclosures at North’s trial “are also the agencies that North (as a White House aide) spent lots of time working with while he was doing what he was doing during the period that we charged him with criminal activity,” the source noted.

Sees Something Wrong

“A cynic could suggest that has something to do with it,” he added. “We’re not suggesting or saying anything about that. What I’m saying is that there is something wrong, and it can only be explained by people exaggerating to the Justice Department what is at risk based on orders the judge has entered.”

He identified the agencies as the State Department, the CIA and the National Security Agency, the super-secret electronic eavesdropping organization that sought unsuccessfully last month to persuade Thornburgh to block North’s trial.

“We believe that as the trial develops, it will become increasingly obvious that this stuff (classified material North seeks to introduce in his defense) is so much fluff, and that it doesn’t have anything to do with the issues in the case,” the source close to Walsh said.

When Walsh moved last month to drop the two central charges of conspiracy and theft against North because of risk to national secrets, Thornburgh “deferred to the independence of the independent counsel, relying on us,” the source recalled.

“For him to stop deferring and to interfere now, when the judge in our view has done a good job in fashioning orders that protect the sensitive information from disclosure pretrial is tantamount to either firing the independent counsel or making him a minion of the Justice Department,” the source said.

Offer Different View

The senior Justice Department officials described the two situations differently. When the two counts were dropped, Walsh told Thornburgh “he could not proceed without disclosing important classified information he recognized could not be disclosed,” one of the officials said.

Walsh at that time said he was prepared to take the risk (of possible disclosure of secrets) and go to trial on the remaining counts against North, the senior official noted. This has led Thornburgh to exercise his “statutory responsibility to make sure that before classified information is disclosed at trial, it would not damage the national security.”

The Justice Department officials contended “there is a great sense within the intelligence community that they want this case to go forward.” They maintained that Walsh indicated he agreed with the Justice Department view that Gesell was not properly applying the Classified Information Procedures Act in this case, but that the independent counsel still did not want the trial date to be delayed.

One senior official, who has said Thornburgh is prepared to submit an affidavit to Gesell that the national security would be impaired if the trial proceeds Monday, acknowledged that Thornburgh has not read the material at issue. Instead, he has relied on lawyers in the Justice Department’s criminal division to study the assessment by the intelligence agencies.