Secretary of State James A. Baker III vowed Friday that the FBI’s new power to seize U.S. fugitives overseas without a foreign government’s permission will not be used without “a full interagency discussion” of all foreign policy implications.
Clearly displeased that he had not known about the new legal authority until it was disclosed Friday by The Times, Baker said that “this is a very narrow legal opinion based on consideration only of domestic United States law.”
“It did not take into account international law, nor did it weigh the President’s constitutional responsibility to carry out the foreign policy of the United States,” Baker told reporters at the State Department.
President Bush, at a news conference, said he was “embarrassed” that he did not know about the issue, revealing what appears to be a lack of communication within the Administration on a matter that could vitally affect foreign policy.
Later, the White House said in a statement that “in any given case, the President must weigh his constitutional responsibilities for formulating and implementing both foreign policy and law enforcement policy.”
The statement said “there will be no arrests abroad that have not been considered” by an interagency process designed to ensure that Bush considers the full range of foreign policy and international law considerations along with domestic law enforcement issues raised by any specific case.
At the center of the controversy is a June 21 legal opinion given to Atty. Gen. Dick Thornburgh by Assistant Atty. Gen. William P. Barr. The opinion reversed a ruling dating back to the Administration of former President Jimmy Carter denying the FBI the authority to seize fugitives overseas without the foreign state’s permission.
The opinion by Barr, who is Thornburgh’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 officials.
Barr declined to discuss his opinion or the reasoning for overturning the 1980 ruling on grounds that he provides legal advice throughout the Administration on a confidential basis.
Milt Ahlerich, assistant FBI director for public affairs, said that the FBI asked for the ruling “relative to its congressionally mandated investigative responsibilities overseas.”
“To date, no action has been taken as a direct result of this advice,” said Ahlerich.
It was learned, however, that the FBI first sought the expanded authority some weeks before Barr’s opinion in connection with a plan to forcibly abduct a fugitive from the Middle East.
A government source declined to say if the plan, which was not carried out, had been presented to a special National Security Council panel that reviews all proposed overseas operations by the FBI and other intelligence agencies. The source also declined to say if the opportunity to abduct the fugitive had disappeared.
Beginning in 1984, he noted, the bureau “was given additional extraterritorial investigative jurisdiction over certain violations of federal law, primarily in the areas of homicide, hijacking and hostage-taking affecting American citizens. Currently, a number of individuals facing charges in U.S. courts remain at large outside this country.”
The fact that top officials in the government were unaware of the new policy seemed to generate as much controversy within the Administration as debate over the merits of the broadened power.
One Administration official, speaking on condition of anonymity, said that on Friday morning Baker called Bush’s national security adviser, Brent Scowcroft, and deputy national security adviser, Robert Gates, “to talk about it, like, ‘what is this stuff?’ and they didn’t know about it, either.”
At the White House, Bush was questioned about the report of the new FBI authority by a journalist who asked: “Perhaps (Panamanian strongman Manuel A.) Noriega has something to do with that since he’s a fugitive. The FBI can go into Panama now?”
Bush: “I’m embarrassed to say I don’t (know) what it is you’re. . . . I’ll have to get back to you with the answer to your question.”
At the State Department, chief spokeswoman Margaret Tutwiler said that although Baker did not learn of the new authority until Friday morning, the department’s legal counsel, Abraham Sofaer, “has been involved with this, I believe he said, for about the last four weeks. Judge Sofaer is on top of this for the secretary.”
A Justice Department source, however, said that Sofaer had been aware of Barr’s opinion when it was issued nearly four months ago.
Times staff writers James Gerstenzang and Norman Kempster contributed to this report.