The Justice Department, as expected, asked the federal Court of Appeals in Washington yesterday to approve special procedures to protect national secrets from disclosure at the trial of an International Telephone and Telegraph Corp. offical.
Philip B. Heymann, chief of the criminal division, said in the department's brief that U.S. District Court Judge Aubrey Robinson Jr. erred in saying he didn't have authority to set up such rules.
Robinson dismissed the jury in the perjury and conspiracy trial of ITT executive Robert Berrellez two weeks ago after refusing the prosecutors' request to be able to challenge the relevancy of defense evidence before - rather than after - it is presented in open court.
Borrellez is charged with lying and conspiring with Central Intelligence Agency officers to obstruct a 1973 Senate investigation of efforsts by the CIA and ITT to black the 1970 election of Salvadore Allende as president Chile.
Robinson said in dismissing the jury that the Justice Department request was "unprecedented." The government brief noted, however, that a similar st of rules was set up for the current trial of former CIA officer William Kampiles in Hammon, Ind. Kampiles is charged with selling supersecret information on a U.S. satellite to Soviet agents.
In its legal brief in the Berrellez case, the Justice Department said it was seeking advance warning on any defense evidence bearing on the locations of CIA officers or their stations, the relations between the CIA and any Chilean and the identity of any CIA source other than ITT officials.
Haymann said the government is "gravely concerned" that such information might be brought out at the trial, even inadvertently.
Specifically, the government asked the appeals court to direct Robinson to sign a so-called protective order setting up the procedures giving prosecutors a chance to challenge the relevancy of defense evidence.
The Justice Department brief agrued that the appeals court should hear the arguments because the issues are a continuing problem in prosecuting sensitive national security cases.
"Unless set aside, the District Court's ruling will is all likelihood prompt the government to dismiss the charges . . . rather than risk the compromise of extremely sensitive national security information," the government said.
Attorney General Griffin B. Bell referred to the problem in a Wednesday press conference, saying he may seek legislation to make it easier to use such special procedures.