Does America Have a Case for Prosecution of Noriega? : Trial: The law and the facts seem to favor the United States. And one thing’s for sure: the general will find the U.S. justice system a kinder, gentler place than the streets of Panama.

With the arraignment of Manuel A. Noriega in Miami, the U.S. drug war shifts from Panama to Florida. Now we will watch the play of the cards dealt in the second round of a non-sporting game whose various outcomes cannot be confidently predicted but which President Bush has deemed worth the try, even at the cost of American lives.

That these cards are no longer military but legal raises the questions of the moment, some or all of which Noriega’s lawyers might pursue.

There is, to begin with, a basic question involving the American military. Our posse comitatus law forbids the use of the Army to enforce criminal statutes. Noriega might argue that U.S. troops were in the wrong line of work. Some facts make the argument plausible. The American intervention was justified in part on law enforcement grounds; Noriega had been indicted both in Miami and Tampa and was a very wanted man. The U.S. troops who went door-to-door looking for Noriega and his associates looked for all the world like a posse, needing only a change of uniforms to shed their disguise. And they did their business on orders from President Bush, who specifically directed the Pentagon to find and apprehend Noriega.

It is not hard to predict the response of government lawyers--that the U.S. military was engaged in a military operation, and that even if it were deemed to be carrying out a law enforcement mission it did so by presidential order. No doubt the United States would also point out that the posse comitatus law applies only within American borders.

Noriega’s lawyers might try to challenge the actual arrest by agents of the Drug Enforcement Administration, either as improperly done or as a violation of international law. On the first, we are hostages to some extent to whatever the facts are, which at the moment seem solidly against Noriega. He surrendered himself, and by all accounts the DEA agents in Panama properly took him into custody.

As for whether the arrest violated international law, Noriega would face a threshold problem in presenting the issue. He would have to show that Panama objected to the arrest. Panama manifestly did not.

Noriega’s lawyers also might try to challenge the use of any evidence collected by U.S. troops. The argument would be that the Christmas Sweep--otherwise known as Operation Just Cause--was an unconstitutional search and seizure. The American reply no doubt would be that the Fourth Amendment standard is reasonableness, and that in the context of a military operation, what our forces did in Panama was perfectly reasonable. In effect, the United States would say that it is unreasonable to expect our soldiers to be lawyers, and certainly not ACLU lawyers. The United States also would argue, as it now is in a case before the Supreme Court, that the Fourth Amendment is a right enjoyed by Americans only.

Questions about the validity of the Christmas Sweep may be irrelevant. The Florida indictments preceded the operation and government prosecutors remain convinced that those indictments are sound.

There is, finally, the possibility that the wily Noriega, once an informant for the Central Intelligence Agency, has given himself up in order to intimidate the United States into dropping its case against him. This is called graymail, an attempt to abort prosecution in a case involving national security by seeking to use information that the defendant knows the government does not want to disclose. For Noriega to succeed at graymail, there would have to be some interesting national security information in U.S. files that constitutes the guts of the case against him yetmust be kept secret. Conceivably, this information might even exculpate him.

Where there is any such information, there is a 1980 law under which the federal courts would sort out requests related to national security. Meanwhile, Justice Department lawyers could try to draft an indictment designed to reduce the gray-mail possibilities.

How all of this and still other questions might be sorted out is anyone’s guess. The law and the facts, so far as they are known, seem to favor the United States. And Noriega will find the U.S. justice system a kinder, gentler place than the streets of Panama, by far.

What is certain is that this new phase of the drug war will be prosecuted, quite literally. Bush cannot cut a deal with Noriega. That would suggest unseriousness about the drug war. And make no mistake: It is a drug war that Bush is waging--one must hope for the better--and now he is waging it by every means.