No Obstacles to a Fair Trial for Noriega

Wall Street Journal, February 6, 1990

By Victoria Toensing

Discussing what the law actually says is not nearly as exciting to the media as hearing William Kunstler say that Gen. Manuel Noriega's trial is "pre-deter­mined" because the judges are paid by the federal government. But at least four is­sues' relating to the trial have been man­gled by the press. Let's straighten them out.

(1) Can Gen. Noriega be made to stand trial if the invasion of Panama does not pass scrutiny under "international law"?

A century-old legal doctrine holds that the courts will not consider the manner by which a defendant is brought into custody unless his lawyers can establish "deliber­ate, unnecessary and unreasonable inva­sion of the accused's constitutional rights." And the courts take a narrow view of what's unreasonable.

If police agents have a valid arrest war­rant for a person, the courts have said, they can grab him on the streets. throw him to the ground and handcuff him. They can, it's clear, use ruses to pressure or fool him into succumbing. Without doubt, there­fore, they can arrest someone who voluntarily walks from his place of hiding and submits to arrest, as Gen. Noriega did.

(2) Won't all the publicity deprive Gen. Noriega of a fair trial?

The law does not require a jury to be ignorant of the facts about the charges against Gen. Noriega or his arrest. It only requires that the jury use the evidence ad­mitted into the trial - and nothing else- to decide whether the government has proven that the defendant violated the law.

Gen. Noriega's case is not to be con­fused with that of Oliver North. Mr. North's jury had to be "ignorant" because Mr. North had been forced by Congress to testify in a televised hearing. Because the Fifth Amendment forbids the state to com­pel anyone to testify against himself, Congress had to grant Mr. North immunity for any statement made during his testimony. No one who had watched the hear­ing or who had read or listened to press re­ports was allowed onto his jury.

Perhaps that's why Gen. Noriega's de­fense attorneys feel free to hop from one national television show to another, decry­ing pre-trial publicity.

3) Will the government have to dismiss charges because of all the classified infor­mation involved?

For years government and defendant would proceed to trial In cases involving classified documents, only to have the Justice Department drop the case because the national security agencies would not declassify what was needed for the defen­dant to present his defense. This was an absurd situation, and to correct it Congress passed the Classified Information Proce­dures Act (CIPA) in 1979.

The act works basically as follows:  The defendant tells the court of specific information or categories of information he deems essential to his defense. (An aggressive defense counsel will make the re­quests as broad and inclusive as possible.) For example, Gen. Noriega might claim he was an informant for the CIA and that the agency knew he was meeting with nar­cotics traffickers. Therefore he would re­quest any and all files held by the U.S. government (not just the CIA) containing his name or the name of any member of a Latin American drug cartel.

The court then reviews these requests and makes a determination.  It could re­spond to the above maneuver by ruling that it does not constitute a valid defense and that the material would therefore be denied. Or it could decide to declassify only files containing Gen. Noriega's name as well as those of specific traffickers with whom he was actually dealing.  If either side is unhappy with the final ruling of the trial judge, and the parties cannot themselves reach agreement, there can be a pre-trial appeal.

In this Gen. Noriega's case is once again vastly different from Mr. North's. Gen. Noriega has been indicted for narcotics violations, not on a charge that goes to the heart of how our government func­tioned during some very sensitive covert actions.  As well, Mr. North had access to many government secrets because of his long-time government tenure. Gen. Noriega presumably was only a paid purveyor of information to the U.S. govern­ment. He might also reveal what our gov­ernment wanted to know from him or how much money he was paid. or he could flash his letters of appreciation from U.S. gov­ernment officials.  But these are not areas that cause U.S. national security agencies to chew their fingernails to the quick­

(4) If Gen. Noriega pleads guilty in re­turn for a specific prison term, will the U.S. be seen to have caved in?

When President Bush said "We don't make deals with terrorists and drug dealers," he meant we do not let them go free, not that the government will reject a plea of guilty where the defendant is imprisoned for a substantial number of years. Gen. Noriega is subject to two indictments, each of which carries sentences totaling more than a hundred years. What great victory is there for the government for him to go to trial on all these counts and be found guilty on each of them when, in fact, his natural lifetime will not equal the total number of possible sentence years?

There is no reason to doubt that Gen. Noriega can receive what is, by all the pre­cedents of our law, a fair trial. So let the case be brought.