Yes, Noriega Can Be Successfully Prosecuted...
 Joseph E. diGenova

Manuel Noriega is here in custody in the United States.  The legal process is underway, and the hand wringing has begun. From near and far we hear that the many obstacles and problems of trying the general are such that the American legal process will grind to a halt, that he will twist the American legal system into knots, and he will leave the United States bloodied, beat­en and embarrassed by virtue of his legal maneuvering.  Nothing could be further from the truth.

Of course, there will be problems with the Noriega prosecution. It is a complex matter. Are those problems solvable? Yes. Do we have a case against the general? Yes. Can we present that case fairly and win it in front of an American jury? Yes. Can we find a far and impartial jury to try him after all the pretrial publicity that has attended his pursuit and eventual arrest? Yes, and history teaches us so.

The truth is the American system has dealt with notorious cases frequently and recently. We have dealt with Watergate (some acquittals), John Hinkley (not guilty by reason of insanity), Iran-contra (North acquitted on nine counts), It is of course true that Gen. Noriega has the right to tie the system into knots and put the government to its proof. But it is equally true that he win probably not succeed, and that the system is designed to make sure the truth will out

Many of the issues Noriega raised at his arraignment the other day are no longer novel. (Was his arrest legal? Did his arrest violate international law? Was he legally brought before the bar? Was evidence illegally seized in his home in Panama?) That is because the cases cited above and others such as the arrest in international waters and subsequent trial and conviction of the international terrorist Fawaz Yunis here in Washington, as well as the civil and criminal actions against Ferdinand Marcos in the United States, have educated our legal system to these complex issues. When it's all over, the American people will once again be unnecessarily astonished at how well their system of justice has worked.

Was Noriega brought before U.S. courts legally? It is already well settled that how a defendant gets before an American court is legally irrelevant unless he has been tortured or brutalized in some way in the process. That is clearly not the case with Gen. Noriega. His note to the pope proclaims he "left of his own free will."

What about the strength of the case? People are worried about the fact that this is a so-called historical conspiracy based on the testimony of others involved in drug dealing with Noriega in the past.  This is not differ­ent from thousands of other drug conspiracies tried regularly by federal prosecutors. It is the traditional way of proving the involvement of higher-ups—you must use unsavory characters involved in conspiracies to prove the case against the kingpins. There are problems of credibility with such witnesses, because they come with testimonial infirmities relative to their line of work. But such problems are overcome every day in American courts by prosecutors and juries.

Can Noriega get a fair trial? Yes, unequivocally, because of the superb jury selection system we have in this country and our superb set of federal judges. Even though there has been and will be enormous publicity, a fair trial can be had; through questioning of jurors (voir dire) to ensure that they can be fair and impartial and render a verdict based only on the evidence in the courtroom; through a change of venue to possibly help in ensuring that jurors will not be tainted by publicity; and through the possibility that the defendant could waive a jury trial and have himself tried by a judge alone, if the government consented, so that the trial would even be more insulated from prejudicial publicity. The Watergate cases, Hinckley, and the North trial make it abundantly clear that it is possible for people to get a fair trial regardless of the amount of publicity. Jurors have demonstrated in those cases and others an amazing ability to

parse the evidence and do justice.

Will Noriega try to use "graymail" or classified information to prevent his prosecution and embarrass the United States in the process? The general no doubt will try, and my guess is that he will fail. Former CIA agent Edwin Wilson tried graymail in several of his trials under similar circumstances to no avail. It may well be that the general has done things (now classified) over a number of years, but that does not in and of itself allow him to use that information. The fact the government may have classified information relative to those activities atone does not make it usable.

Noriega will have to show that whatever classified information he seeks is relevant to his defense and specifically to the charges enumerated in the indictment concerning drug dealing, conspiracy, money laundering and racketeering little if anything in the

CIA files will be relevant to that and could do him any good. But even if there is relevant information, it is also true that the government probably is prepared to bear whatever embarrassment may come from the revelations surrounding its past dealings with an unsavory character to assist in getting intelligence. Our intelligence agencies have, from their inception, dealt with unpleasant people; indeed, it is part of their mission. There is no reason to suspect the American people would be aghast at the fact that there was a relationship between our intelligence community and someone of Noriega's apparent character.

How can the United States have jurisdiction over Noriega when according to the indictment none of the acts charged against him were committed by him in the United States? Simply put, once you are part of a conspiracy or aid and abet a crime, and once various acts are committed by you and others, you don't have to be involved in the actual commission of those offenses in the territory of the United States to be accountable for them. Indeed, in the case of the Fawaz Yunis, who blew up the Jordanian jet and took Americans hostage, all the acts for which he was indicted and convicted in District Court here were committed overseas. Interna­tional and U.S. law are clear that the extraterritorial application of American law to individuals involved in conspiracies is well established, and Noriega fits that law to a "T."

If evidence seized during the invasion by U.S. military and DEA personnel is used it the trials, will it be suppressed because of violations of the Fourth Amendment? While this is one of the more interesting issues at hand, in all likelihood the United States will argue, as it has in a recent case now before the Supreme Court, that the Fourth Amendment doesn't apply to non-citizens overseas, and the evidence, will be admitted. In addition, assuming that the Fourth Amendment does apply, there are circumstances to he argued establishing the legality of the conduct of U.S. personnel.

Finally, isn't Noriega a head of state and thus immune from prosecution in any other country for acts committed during his reign? His alleged private acts of crime provide him no such immunity, and the Marcos case rulings provide him with little chance of success on this issue.

The Noriega case is interesting, and it has its problems. But there is no need to be seriously concerned about the court's ability to try the case and proceed to a just and fair verdict.