The Justice Department, acting with unusual secrecy, has given the FBI legal authority to apprehend fugitives from U.S. law in foreign countries and return them to the United States without first obtaining the foreign state's consent.
The ruling could apply to such cases as the U.S. effort to bring Panamanian strongman Manuel A. Noriega to trial on federal drug- trafficking charges in Florida.
In a June 21 legal opinion requested by Atty. Gen. Dick Thornburgh, Assistant Atty. Gen. William P. Barr reversed a ruling dating back to the Carter Administration that had denied the FBI such authority to take unilateral action overseas. The Carter ruling even had warned that federal agents could face kidnaping charges abroad if they used such tactics.
The new opinion by Barr, who is the attorney general's chief legal adviser in his capacity as head of the office of legal counsel, has been dubbed "the President's snatch authority" by some Administration sources.
There are no indications that any fugitives have been apprehended so far under the new ruling, which carries the title "Authority of the FBI to Override Customary or Other International Law in the Course of Extraterritorial Law Enforcement Activities." But any such actions could be expected to bring protests from nations where suspects are seized on grounds that their sovereignty has been violated.
Department officials refused to discuss the broad new grant of power, the legal grounds used to justify it or even to acknowledge its existence.
"I just don't discuss the work of the office of legal counsel," Barr said. "The office . . . provides legal advice throughout the Administration and does it on a confidential basis."
The refusal by Barr, David Runkel, Thornburgh's chief spokesman, and other Justice Department officials to discuss the ruling, which does not carry a security classification, is puzzling because the March 31, 1980, opinion that it reversed had been made public and published.
That ruling by the then-head of the legal counsel's office, John M. Harmon, was issued in response to an FBI proposal to abduct fugitive financier Robert L. Vesco, who was then in the Bahamas. The island state had turned down a U.S. request for its cooperation in bringing Vesco back to face multiple charges in the United States, according to a source familiar with the matter.
Vesco is accused of looting hundreds of millions of dollars from mutual funds before fleeing to Central America in 1973. He also is charged with secretly giving $200,000 to former President Richard M. Nixon's 1972 reelection campaign to try to obstruct an investigation by the Securities and Exchange Commission.
While declining to discuss Vesco's location at the time, Harmon confirmed that the FBI sought to apprehend him forcibly. "The President (Carter) wanted him, and everybody else wanted him," Harmon recalled.
The operation proposed by the FBI called for its agents to enter the Bahamas and forcibly seize Vesco. The 1980 opinion said that the foreign state was expected to "file a pro forma protest to the fugitive's apprehension and return to the United States."
The Harmon ruling acknowledged that "some elements of the local police force might provide physical surveillance and aid in the neutralization of bodyguards during the actual apprehension."
But in warning against the Vesco operation being conducted without the Bahamas' consent, the opinion said that "U.S. agents have no law enforcement authority in another nation unless it is the product of that nation's consent."
". . . We conclude that the FBI only has lawful authority when the asylum state acquiesces to the proposed operation," Harmon's ruling said. "Since we are to assume that a pro forma protest to the operation would be filed, that fundamental condition would probably not be satisfied here.
"Asylum state consent appears pivotal to the success of the operation, both as a matter of litigation and public perception," the 1980 ruling said. The importance of the foreign state's authorizing the action "is perhaps most dramatically highlighted by the possibility that federal officials may be extraditable to the asylum state for kidnaping," Harmon said in the opinion.
"In the current international climate, this country can ill afford an operation that would permit others to argue that the United States does not respect international law," the ruling also said. "We advise that you not authorize the operation without the asylum state's tacit consent." Harmon's opinion noted, however, that the Supreme Court has consistently held "that the power of a court to try a person for crime is not impaired by the fact that he (has) been brought within the court's jurisdiction by reason of a 'forcible abduction.' "