The Washington Post and The Wall Street Journal asked two federal courts yesterday to lift the secrecy surrounding the contempt proceedings against Marine Lt. Col. Oliver L. North in the Iran-contra investigation.
The newspapers lodged their protests in an emergency application with the U.S. Court of Appeals here and in a similar action before Chief U.S. District Court Judge Aubrey E. Robinson Jr. They took particular exception to an alteration in the docket sheets of the Court of Appeals last week that was apparently intended, the newspapers asserted, "to prevent the public's knowing that Mr. North had filed a motion for bail."
Lawyers for Public Citizen, a government watchdog group, filed similar complaints in both courts.
Robinson secretly held North in contempt last month for refusing, on constitutional grounds, to comply with a grand jury subpoena demanding a sample of his handwriting, according to informed sources. The Court of Appeals secretly granted North a stay and then, this week, issued a sealed opinion sending the case back to Robinson for further hearings. He held another closed session on the matter Thursday with lawyers for North and for independent counsel Lawrence E. Walsh.
"It is contrary to our tradition of openness for the administration of justice to be carried out behind closd doors and on the basis of secret legal arguments and decisions," Public Citizen said in its legal memos.
The Post and The Journal said that "the public interest favoring access is great" since Walsh's investigation "involves issues of major public importance, including the integrity and credibility of high government officials."
North, they added, "is in the eye of a storm which is running its course in public view." The newspapers said it is inconceivable that he would have any rights of secrecy in the case that could overcome the public right of access.
All petitioners emphasized that they are not seeking disclosure of "matters occurring before a grand jury," but only the transcripts, records and rulings involving the contempt action against North in the two courts. Public Citizen also asked Robinson to hold future proceedings in open court.
Last week, after North had been held in contempt, Associated Press reporter James Rowley reported that a docket entry in the Court of Appeals showed North had made a sealed motion "for bail" May 8. But after he filed his story and other reporters began making inquiries, the docket entry was evidently changed to read "for relief."
"The alteration of a publicly available judicial record in this fashion, if it occurred, undermines the confidence which the public, litigants and the bar place in the administration of justice by the courts," The Post and The Journal said.
Public Citizen pointed out that the public received no official notice of the dispute, entitled "In Re Sealed Case," until an appellate court panel issued an order calling for filing of briefs by interested parties on only one issue -- the constitutionality of the independent counsel law under which Walsh was appointed last December.
After hearing arguments last week on the constitutional question, the three-judge panel backed away from it Monday. The panel sent the case back to Robinson, announcing tersely that he had erred in deciding North's protest was not ripe for review and instructing the judge to see if he could settle the matter on other than constitutional grounds.
Public Citizen said proceedings for contempt, "including contempt for refusal to cooperate with a grand jury," have historically been open to the public.
A local rule of the federal courts here appears to require closed hearings on grand jury contempt actions unless the targets want them to be public. But all three petitioners attacked this provision as unconstitutional by improperly stretching the traditional grand jury secrecy rule into the traditionally open courtroom.