Noriega Case Is Miscarriage of Justice : Pursuing Him in Court Hinders Future Moves on Dictators

The more one looks into the disaster of U.S. policy in Panama, the clearer it becomes that the worst mistake was the decision to charge Gen. Manuel A. Noriega with drug trafficking and racketeering.

Now comes word that federal prosecutors in New York are rushing to file fraud and conspiracy charges against deposed Philippine President Ferdinand E. Marcos before the statute of limitations expires July 18. Once again an indictment may be a mistake.

I hold no brief for either man; both are or were unquestionably corrupt and destructive rulers of their countries. The goal of U.S. policy should be to encourage such tyrants to leave office and leave the country quietly. And in fact that has been the underlying goal of U.S. policy. The problem is that splashy but ineffective legal charges--all bark and no bite--work directly against that policy.

“The indictments locked (Noriega) into his isthmus,” said Ambler Moss, U.S. Ambassador to Panama from 1978 to 1982. At the time of the Moscow summit, Secretary of State George P. Shultz elaborated on this: “You make him a prisoner in Panama because he can avoid extradition by staying there.” (A 1904 treaty makes it impossible for the United States to extradite Panamanian citizens from Panama.)

Shultz added that “we cannot do much about” the charges made in the indictments by federal grand juries in Miami and Tampa. Sheriff’s deputies cannot serve subpoenas in foreign lands, and people like Noriega, with armies at their disposal, are not about to hop on the next plane in response to the beckoning of U.S. judges. For these reasons, it is worse than useless to file headline-making but ineffective charges against foreign heads of state. They generate expectations that cannot be met, thereby setting us up for disappointment and recriminations. Military invasion becomes the sole remaining option. President Reagan ruled this out in the case of Panama, probably wisely.

After nothing happened for a few months, Shultz prevailed on the President to try coaxing Noriega out of Panama by promising to drop the charges if he moved to another country. This was understandable, given the folly of the indictments, but in the end self-defeating, both logically and politically. Administration willingness to drop the charges in exchange for Noriega’s departure must have told him that the charges weren’t serious. For if the law really had teeth--that is, if it had the ability to bring Noriega into the courthouse and eventually (if conviction followed) into the jailhouse, he would have been leaving the country anyway. (Let us not even get into the embarrassing business of offering to let him choose his successor and return to Panama for vacations.)

The message to Noriega and the world was that the United States is willing to file criminal charges against heads of state just for bravado’s sake.

The deal predictably fell through, but not before it damaged Vice President George Bush and the Republican Party: poetic justice on the rebound. The Administration that filed charges against a drug trafficker in order to look politically tough on drugs ended up looking weak on drugs when it wanted to drop those charges. Better, surely, to have thought these things out beforehand.

In recent weeks the attempt has been made to blame the whole episode on Assistant Secretary of State Elliot Abrams. But the chronology of events does not support this. Initially, it was the grand jury testimony of a former Noriega associate, Jose Blandon, that gave the U.S. attorney in Miami, Leon Kellner, the evidence that he needed to proceed. Atty. Gen. Edwin Meese III then approved the indictment. The State Department was given only a few days’ warning. According to a department official, the pending indictment of Noriega was discussed at an inter-agency meeting, “but no one spoke out against it” at the time. The reason, he said, was fear of headlines that would portray the Administration as interfering with truth and justice “on behalf of a drug-trafficking thug.”

In retrospect, there is no doubt that the State Department should have tried to stop the indictment, and in failing to do so maybe Shultz or Abrams deserves blame. But the person who really should have questioned what was going on was Meese. In particular, he might have asked the prosecutor how he intended to secure Noriega’s appearance in a U.S. courtroom. If U.S. attorney Kellner had said that this was a problem for the military to solve, it would have become clear to all that the indictment was a legal fiction. The problem appears to be one of politically ambitious prosecutors in the provinces inadequately held in check by Washington--exactly what is to be expected from a “hands-off” presidency.

In Meese’s defense, however, imagine the uproar if he had stepped in and blocked the indictment. And imagine the reaction in the next week or two if Meese or Reagan prevents the indictment of Marcos. One can already see the indignant headlines.

It may be argued that since Marcos has left the Philippines, and now lives in Hawaii, the Noriega complications do not apply: It would be easy to bring Marcos into court. Still, such a move would set a bad precedent. The goal of policy should be simply to oust rulers like Marcos. This is punishment enough. Vengeful pursuit through the courts will have the bad effect of discouraging the peaceful departure of future dictators.