U.S. Prosecutors Picking Way in a Legal Minefield

Not until the Air Force plane had cleared Panamanian airspace, not until 45 minutes after U.S. military authorities took him in tow outside the papal embassy and whisked him away in a helicopter to the waiting plane did a federal drug agent officially place deposed Panamanian strongman Manuel A. Noriega under arrest and read him his rights in Spanish.

The carefully choreographed sequence reflected the fact that, before they can bring Noriega to justice for alleged drug activities, prosecutors must first pick their way across some tricky legal ground.

Initially at least, Justice Department lawyers were successful. And they may well continue to prevail as they move toward a trial. But the Noriega case raises a host of difficult legal issues, and the final outcome of the Bush Administration’s bold action will not be known until all those issues have been reviewed and resolved by American courts.

Immediately, there is the question of whether the way Noriega was taken into custody and then formally arrested complies with the requirements of U.S. law and thus provides a valid basis for proceeding to trial.

The “conscious” decision to make an unusual airborne arrest was aimed at heading off anticipated claims by Noriega’s defense attorneys that U.S. agents lacked authority to arrest him on Panamanian soil.

Atty. Gen. Dick Thornburgh, along with other U.S. officials, took the position Thursday that Noriega had surrendered voluntarily at the papal nunciature in Panama City. That “really puts a lot of those (legal) questions on the shelf,” he declared.

Noriega’s lawyers immediately disagreed. They maintained that there was nothing “voluntary” about Noriega’s surrender, that he was coerced into leaving the nunciature in Panama City where he had sought asylum and that U.S. courts lack jurisdiction over the former head of state.

Last year, months before his death, lawyers for deposed Philippine President Ferdinand E. Marcos argued similarly that he could not be tried in a U.S. court for his actions as a head of state. But the arguments were rejected in the lower federal courts, and in April, the U.S. Supreme Court rejected his appeals.

Meantime Thursday, arguments sharpened within the U.S. government over whether the February, 1988, indictments of Noriega on drug trafficking, money laundering and racketeering charges were a “rush job” that could create future problems for the government.

Critics charged that federal prosecutors failed to investigate fully whether his work for the CIA and Drug Enforcement Administration involved material that the government cannot afford to reveal at trial.

A senior government official said that Noriega was not the primary target of the federal indictment in Miami but was added only after prosecutors ran across his name when poring over documentary evidence in the case, in which a number of other defendants also were charged.

Unprecedented Move

“Until then, nobody had even thought about the possibility of prosecuting him, especially since he was the leader of a foreign government, and we had never done anything like that before,” he said.

But William F. Weld, who was assistant attorney general in charge of the Justice Department’s criminal division at the time Noriega was indicted, disputed this account in an interview.

“Noriega was not added to either indictment at the last minute,” said Weld, who is a candidate for the Republican nomination for governor of Massachusetts.

The senior government official, who declined to be named, said that the decision to indict Noriega “did not get the kind of scrubbing on foreign policy issues we normally expect at the senior level, because the proposal for indicting was floated up here (Washington) in a last-minute kind of way.”

He added that then-Atty. Gen. Edwin Meese III “was not in a position to exercise the kind of judgment he should have.” Meese at that time was under such intense criticism for having granted a controversial delay in a federal grand jury’s investigation in Miami of a matter related to the Iran-Contra scandal that he “didn’t think he could tell the prosecutor not to indict Noriega,” the official said.

But Weld and others involved in the pre-indictment process in 1988 recalled meeting with CIA and National Security Council officials about the case. “We hashed out the whole thing,” and the intelligence agency officials were asked to bring up any problems with going ahead, Weld said.

“I’m not saying everybody was thrilled” with the idea of prosecuting Noriega, but no problems were brought to prosecutors’ attention, he said. “I remember being absolutely satisfied that (the indictment) was not going to be subject to attack” by Noriega’s lawyers on grounds that they had to reveal government secrets to defend their client adequately.

Senate sources contended that the Noriega prosecutors were in “a rush to indict” before some witnesses in the case testified before a hearing by a Senate subcommittee. “They didn’t want it to look as if their indictments were built on (Capitol) Hill revelations,” one source involved in the matter said.

But the subcommittee did conduct scaled-down hearings before the indictments were returned.

David Runkel, the Justice Department’s chief spokesman, stuck by his earlier statement that there had been “some rush to draw up the Noriega indictment” in the face of denials by prosecutors who were involved.

Runkel did back away from his earlier statement that the case against Noriega was being bolstered by evidence uncovered during the U.S. invasion of Panama. He said Thursday that there had been no decision on whether that material would be used--raising doubts about whether the evidence could withstand challenge from Noriega’s defense lawyers.

Noriega’s attorneys got nowhere Thursday with their argument that the U.S. courts do not have jurisdiction over him because he was the head of a sovereign foreign government, not a common criminal. That argument had been rejected in pretrial proceedings shortly after the indictment.

In pressing their argument, which will almost certainly be renewed at a later stage in the proceedings, Noriega’s lawyers can cite two 19th-Century legal doctrines that call for a hands-off approach to foreign officials.

Under the doctrine of “foreign sovereign immunity,” a head of state is personally immune under international law for his actions taken while in office--even after he leaves office.

Under the “act of state doctrine,” the U.S. courts, as a matter of policy, have been unwilling to judge the actions of a foreign government official taken on foreign soil. For example, a leader of the Romanian secret police could not be hauled into a U.S. court and tried for having beaten or shot a protester in Bucharest.

On Thursday, Noriega’s attorney, Frank Rubino, sought to invoke those jurisdictional arguments, telling U.S. District Judge William M. Hoeveler in Miami that his client was “a head of state and immune from prosecution.”

But Hoeveler rejected the defense contention.

“Official immunity only covers acts within the scope of office. Narcotics trafficking is not normally considered an act of state,” said UCLA Law Prof. Phillip Trimble.

Times staff writers Jack Nelson, David Savage and Robin Wright contributed to this article.