THERE'S an element of the absurd in the interminable Iran-contra prosecution. This elephant of a prosecution - costing the taxpayers tens of millions of dollars, and more to come - has brought forth a mouse of legal results. But it's hard to assign responsibility. Is it the fault of an overzealous prosecutor? Of stonewalling public officials? Or is it an inevitable, albeit unsatisfactory, consequence of the need to protect national secrets? Last week the judge in the trial of Joseph Fernandez, the former CIA station chief in Costa Rica accused of helping Oliver North illegally arm the Nicaraguan contras, dismissed the case when Attorney General Dick Thornburgh refused to release classified documents deemed vital to Mr. Fernandez's defense.
The ruling also may affect the prosecution of former national security adviser John Poindexter, who also claims the need for classified information.
The Fernandez dismissal adds to Mr. Walsh's unimpressive results. True, he has obtained either convictions or guilty pleas in his cases against Mr. North, Robert McFarlane, Richard Secord, Albert Hakim, and lesser figures. But the crimes have been misdemeanors or low-level felonies, none involving the actual sales of arms to Iran or the diversion of profits to the contras.
Critics of the prosecutions, and of the special-prosecutor law itself, denounce Walsh's results as classic proof that single-purpose prosecutors with unlimited budgets and reputations on the line lose all sense of proportion.
But wait, Walsh's supporters say. It's not his fault that he's established culpability only for minor offenses. Blame the law that gives the attorney general and national security officials final say in the disclosure of allegedly vital secrets. This discretion, it's asserted, can be misused to block accountability for official misconduct.
Who's right? As part of the Iran-contra aftermath, Congress needs to look at both claims.
Has Walsh been correct to pursue his cases doggedly, even as it became evident that national security assertions would hamstring him? Perhaps he should have resigned himself earlier to the legally disabling circumstances, and been content to publish (consistently with due process) his investigative findings, to increase public understanding of the affair.
At the same time, there is genuine concern that purported national security considerations have weighed too heavily in the Iran-contra prosecutions and have unnecessarily shielded wrongdoers from accountability. Congress should reexamine the 1980 law that set up procedures for the use of classified information in criminal trials to determine if it is unduly restrictive.