Ruling on FBI Seizures Defended in Congress : Law: A Justice Department aide warns of ‘terrorism and narco-terrorism.’ Rep. Edwards calls this a ‘radical proposal.’

Atty. Gen. Dick Thornburgh’s chief legal adviser Wednesday cited mounting terrorist and drug threats as justification for his June 21 opinion that the FBI has legal authority to seize fugitives overseas without a foreign country’s permission.

Testifying before the House Judiciary subcommittee on civil and constitutional rights, Assistant Atty. Gen. William P. Barr dismissed as “fundamentally flawed” a 1980 Carter Administration ruling that denied the FBI such authority.

Barr was pressed by California Rep. Don Edwards (D-San Jose), the subcommittee chairman, on why “this very radical proposal” was issued at a time of increasing detente.

“We are facing an increasing menace in the area of terrorism and narco-terrorism,” said Barr, who as head of the Justice Department’s office of legal counsel is known as “the attorney general’s lawyer.”

“There are still lawless countries in the world that sponsor terrorism directed at the United States,” Barr added.

Edwards said that his subcommittee keeps “very careful count” of terrorist incidents, and noted that they had dropped from more than 100 annually to an “infinitesimal” level this year and last.

“What’s the crisis?” he asked.

“Mr. Chairman, I’m sure the families of the people on Pan Am 103 will be glad to know that the incidents in the United States were infinitesimal,” Barr shot back, referring to the Dec. 21, 1988, bombing of the London-to-New York flight that crashed in Lockerbie, Scotland. Among the 270 killed were 189 Americans.

Barr emphasized at the hearing that his analysis did not mark a change in policy but only a legal opinion that under U.S. law, the FBI now has authority to conduct arrests abroad without a foreign country’s consent. That opinion was also emphasized by Abraham D. Sofaer, State Department legal adviser, and Oliver B. Revell, FBI associate deputy director for investigations.

The three Administration witnesses said that there is an “inter-agency process” that would be followed to ensure that the President considers foreign policy and international law before dispatching agents to seize suspects abroad without the foreign country’s approval.

Sofaer and Revell said that foreign countries had expressed concern after Barr’s opinion was disclosed on Oct. 13 by The Times. Foreign officials expressed “concern that we were going to mount up like the Lone Ranger,” Revell said, but “we have given assurances there is no change in our practice and policy of conferring with them” before moving against fugitives in their countries.

Revell said that the FBI had sought the reexamination of the Carter era ruling because its criminal investigative division wanted “to look at a number of different scenarios.” Other intelligence sources, however, have said that the FBI submitted the issue to Barr’s offices when it was seeking to seize a fugitive from the Middle East, months before the ruling.

Despite the assurances of the Administration witnesses that the authority was limited and would be examined carefully before being used, Rep. Edwards remained unconvinced.

“I can think of no law passed by the Congress or any provision of the Constitution that licenses the United States to be an international outlaw,” Edwards said.

Barr’s opinion was hailed in an opening statement by one member of the subcommittee, Rep. James Sensenbrenner (R-Wis.), who left the hearing before testimony began.

Sensenbrenner said he was concerned that the inquiry “appears to be an effort to hamstring” the FBI. If the Carter era ruling were still in effect, the only persons who would benefit are “the Kadafis, Noriegas” and drug cartel leaders, he said, referring to Libya’s strongman Col. Moammar Kadafi and Panama’s Gen. Manuel A. Noriega.