Washington — Ferdinand Marcos has put the United States snugly between a rock and a hard place. Sometime within the next few days or possibly weeks, the US will decide whether or not to indict the former Philippine President for fraud and conspiracy. It will not be an easy decision.
A US attorney in New York City has recommended that the government charge Mr. Marcos with using millions of dollars in Philippine government money to buy American real estate and art and then conceal their ownership. The proposed indictment, which is being reviewed by the Justice Department, would steer the US into a mine field of legal and foreign policy questions.
These questions are arising more frequently of late. Already this year, US prosecutors have indicted two top foreign officials on charges of drug-related crimes: Panama's Gen. Manuel Antonio Noriega and Haiti's Col. Jean-Claude Paul. Prosecutors in Florida are also reportedly investigating Bahama's prime minister, Lynden Pindling, and allegations that he sold safe passage to drug smugglers.
``The foreign policy implications of indicting a head of state are almost mind-boggling,'' says a Justice Department official involved in both the Marcos and Noriega probes. ``And after Noriega, there's an awareness now of the problems, the complications, and the sensitivities'' of indicting a current or former leader of another country.
Now officials in the Justice Department are tallying up the pluses and minuses of hauling Marcos into court.
On the minus side, the department is wrestling with the straightforward question of just how strong their case is. For example, the case must rely in part on documents and testimony from foreign bankers and some reluctant foreign witnesses.
One key witness whose cooperation would have been valuable to the prosecution escaped custody in March and cannot be brought back to the US for questioning. She is thought to have knowledge of some of the dummy corporations through which Marcos allegedly flushed Philippine assets to buy American property and art.
The $5 billion offer
Justice Department officials in Washington were reportedly trying to tie up loose ends when a bombshell dropped last week.
That bombshell was Marcos's offer - confirmed by an American intermediary, Allen Weinstein - to give the Aquino government $5 billion. In exchange, he wanted to return to his country free of prosecution in the Philippines. His US problems would also be solved, since the US does not have an extradition treaty with the Philippines.
``This is a last ditch attempt to forestall the New York indictments,'' says Severina Rivera, general counsel of the Philippines' Presidential Commission on Good Government, in Washington, which was formed by the Aquino government to recover assets believed to be taken by Marcos and his associates. ``He knows if he's going to do that, he has to do it now.''
Filipino diplomats promptly rejected the Marcos offer, and many people doubt Marcos has the money anyway. But President Corazon Aquino's terse response last week - ``Send the $5 billion first, and then we will talk'' - left some ``wiggle'' room, some observers believe.
For one thing, it would take years for the debt-ridden Philippine government to recover that kind of money through its various court cases, says one American lawyer familiar with the various investigations of Marcos around the world. Estimates of how much money the Marcoses and their associates allegedly diverted from the Philippines range from about $1 billion to $10 billion.
``Two weeks ago, before this thing surfaced, I didn't see much of a foreign policy argument'' against indicting the former Philippine leader, says one administration official close to the investigation. ``But if you throw into the pot the $5 billion and the possible reconciliation of the Philippines'' with Marcos, ``then it becomes a much more difficult case.''
Whether the Marcos offer will affect the US investigation hinges on Philippine interest in the offer, once the media spotlight shifts away from the proposal. In the meantime, this official doubts that the Justice Department will slow down the progress of the indictment.
Sending the wrong signal?
Perhaps the biggest problem involves foreign policy. ``There are people who are concerned that if you indict Marcos, what happens the next time we want to get a dictator out of the country?'' says an aide on the House Subcommittee on Asian and Pacific Affairs. ``On the other side of the ledger, what happens to US-Philippine relations if you don't indict him'' when you have a strong case?
The tension between foreign policy goals and the rule of law turned the Noriega indictment into a messy affair. Some officials felt that more thought should have been given before the indictments were issued, since the charges discouraged him from relinquishing power, as the US wanted.
According to one person involved in the process, the Justice Department alerted Assistant Secretary of State Elliott Abrams a week before the charges were unsealed.
Other officials with an interest in the charges - in the White House, State Department, and the intelligence agencies - got wind of the charges only a couple of days ahead of time, when they convened for a special interagency meeting about it.
Today, the administration seems bent on preventing another Noriega incident. ``We hope to make sure that no prosecution is received and resolved in such a fashion that people are rushed to judgment,'' says Frank Keating, the acting associate attorney general. He says now any indictments must be reviewed first by the criminal division, then his office, and then the interagency group, for ``advice and an opportunity for reflection.''
The final decision is made by the Justice Department. However, outgoing Attorney General Edwin Meese III has reportedly said that he wants to know of the decision so that he may talk directly with the President beforehand.
One reason the US may go ahead is that the US and Filipino prosecutors have been exchanging information relevant to each country's cases against Marcos. Dropping the indictments when the Philippines wants the US to continue could be considered a slap in the face.
Indeed, the Aquino government, which is suing Marcos both in the US and in the Philippines to recover government money, would get a boost if Marcos were tried and convicted in New York. Many of the facts would already be proved in the criminal case, making the Philippines' civil case in New York easier to win.
And probably the biggest plus is demonstrating that the US is a nation of laws. This is acutely obvious when comparing Marcos's situation with General Noriega's, says a former Justice Department official.
``If we indict Noriega for crimes committed abroad and he's a sitting head of state, why would we walk away from a prosecution of someone in the US for crimes in the US?'' he asks. ``That smacks of a double standard.''