Tapped Phone Ignites Dispute in Noriega Case

A new dispute erupted Thursday in the case of deposed dictator Manuel A. Noriega with disclosure that the government had recorded some of Noriega’s phone calls from jail to his defense attorneys.

An outraged Frank A. Rubino, the chief defense lawyer, said that he would seek dismissal of federal drug-trafficking charges against the former Panamanian leader on grounds that confidential attorney-client conversations had been breached.

But prosecutor Myles Malman told U.S. District Judge William M. Hoeveler in Miami that federal lawyers had not listened to any of the tapes and that the FBI was investigating to determine how copies were obtained and broadcast by Cable News Network.

Outgoing phone calls by prison inmates often are monitored if there are suspicions that they are planning other crimes; inmates are alerted to this practice, federal officials said. While attorney-client conversations generally are exempt from eavesdropping, they said, Noriega frequently has called Rubino’s Miami office only to route calls to associates in Panama.

“Noriega, like all prisoners, signed an acknowledgement of monitoring,” and the telephone he uses “has a notice on it that calls are monitored,” said Robert S. Mueller, chief of the Justice Department’s criminal division.

In addition, “Noriega was informed that he could properly make an unmonitored call to his counsel by notifying the staff in advance of such a call and requesting that it not be monitored.”

However, outside legal experts said that the government, in this instance, appears to have overstepped the bounds of propriety.

Richard Ben-Veniste, a Washington lawyer and former associate Watergate prosecutor, said that phone conversations between a prisoner and his lawyer “never are supposed to be monitored.

“This strikes at the heart of the criminal justice system,” Ben-Veniste said. “It directly affects a defendant’s ability to confide in his attorney, as well as the ability of a lawyer to defend his client.”

“A federal inmate still has 6th Amendment rights unless he’s told that all his calls are going to be monitored,” said Plato Cacheris, another attorney and former Justice Department official. But Cacheris contended that “even then, the lawyer-client privilege should not be intruded upon.”

The 6th Amendment contains fair-trial guarantees, including the right to counsel.

A Justice Department source insisted that, as far as he knows, Noriega never asked that his calls not be taped because he was making a personal call to his lawyer.

Hoeveler, who long has expressed determination to try Noriega, despite any obstacles, gave no hint at an impromptu court hearing that he is considering dismissing the case. He directed the government to provide him with more details of the monitoring and ordered CNN to stop broadcasting excerpts of the conversations.

CNN lawyer Daniel Waggoner said that Hoeveler’s temporary injunction would be challenged, although the network did not air any of Noriega’s conversations with his lawyers. The segments broadcast dealt with political moves in Panama, a message to the Cuban Embassy in Panama, the transfer of sums of money and concerns about prospective witnesses against him.

However, Rubino said that CNN also played one recording for him that clearly was a conversation between Noriega and his defense team. Noriega was forcibly returned from Panama last January on a federal indictment. He is in a three-room cell at the Metropolitan Correctional Center south of Miami awaiting trial.

In one exchange typical of those that CNN broadcast, Noriega is heard talking with a former Panamanian official:

Noriega: Hi, Lucho.

Official: Hi, boss. How are you? I was worried because I didn’t hear from you for so long.

Noriega: I thought you had already gone out of the country.

Official: No, your friends have me trapped here.

Noriega: But you are working hard, right?

Official: Enormously.

Noriega: Uhmm, because it is important to keep the morale of our people high.

His lawyers visit him frequently for face-to-face conversations that never are monitored, officials said.

“Without a doubt this is the most serious violation (of attorney-client privilege that) I have ever experienced,” said Rubino. “Can Gen. Noriega receive a fair trial when every day we wake up to the threat of our case strategy being aired to 400 million listeners and the prosecution learning details of our defense?”

Hoeveler agreed that “it’s becoming more and more difficult in this case to assure that both parties get a fair trial.”

For several months the judge has been trying to get the Justice Department to lift a freeze imposed on Noriega’s overseas bank accounts so that he will have access to enough funds to pay his lawyers.

Hoeveler stressed the importance of the FBI’s determining the source of the leaked tapes. Several months ago, someone leaked to a Miami television station a film clip showing Noriega pacing in his jail cell. The FBI still is investigating that incident.

Noriega was indicted in February, 1988, by a federal grand jury in Miami on 11 counts of drug-trafficking, conspiracy and money-laundering. He was charged with accepting $4.6 million in bribes to protect cocaine shipments flown from Medellin, Colombia, through Panama to the United States. He is also accused of allowing Colombian drug gangs to use Panama as a safe haven to process their drugs.

If convicted on all counts, Noriega could receive a maximum sentence of 145 years in prison and $1.1 million in fines.