Noriega and American Criminal Law

RECENT analyses of the failed coup in Panama seem confused about why the leaders of the coup did not turn Gen. Manuel Antonio Noriega over to the United States. The obvious answer lies in what coup leaders expected the US to do with him and its implications for Panamanian independence. General Noriega is under indictment in Florida on criminal charges relating to acts done by a Panamanian in Panama. American legislation extended US criminal law in this way; the US attorney in Florida, acting under that legislation, was discharging the president's constitutional responsibility to ``take care that the Laws be faithfully executed.''

The jurisdiction is argued to rest on the so-called ``effects doctrine,'' which asserts that US laws can be applied to foreigners whose acts abroad have an ``effect'' here. This view raises real apprehensions in Panama that Noriega could be tried and convicted in an American court, and thus that Panamanians delivering him to US officials would be cooperating in extending American criminal law to a Panamanian national acting only in Panama.

As far as the US has been concerned, since 1903 Panama has been, in law, our equal. But Washington would indignantly reject an attempt by Panama to do what the US has been asserting the authority to do to Noriega: to apply its criminal law to President Bush.

The Panamanians surely could find sufficient evidence, under their law, to send a case against Mr. Bush to trial. He could be charged with incitement to riot, or with entering into a conspiracy to kidnap in connection with the recent coup. There is no doubt that the ``effects'' of his actions are felt in Panama.

If the US argues that its extended jurisdiction applies only to drug trafficking or money laundering, the response by all Latin America (and probably the entire world) would be skepticism: American statements asserting the effects doctrine are not so restricted, nor is the legislation implementing it.

In fact, the entire American assertion of extended jurisdiction is dubious in law. Could any government accept the authority of a foreign legislature to make criminal law for its territory and still purport to be independent?

Precedents illustrating the limits international law places on supranational jurisdiction in the absence of treaty go back at least to 1886, when the US vigorously protested the jailing by Mexico of an American named A.K. Cutting for a criminal libel uttered in Texas and having an effect in Mexico.

Coming to more recent events, Washington's request to Chile for cooperation in apprehending Chilean officials who ordered the 1976 assassination of Orlando Letelier in Washington was rejected by the Chilean courts. American seizure of Fawaz Younis, a Lebanese militiaman who had participated in hijacking a Jordanian aircraft as part of his militia's struggle against the PLO, was potentially so embarrassing to Cyprus, from whose vessel he was taken by US agents, that we actually asserted he was taken on the high seas, as if he had been swimming at the time. Cyprus was happy to remain silent rather than get caught in a political and legal tangle in the Middle East. Mr. Younis's conviction in an American court is now being appealed on jurisdictional grounds.

By applying American criminal law to Noriega for his actions in Panama, the US deprived the coup's leaders of the legal and political option of cooperating with Washington by exiling him. Their cooperation would have appeared to be a matter of American law enforcement rather than a matter of political choice. These are the knots tied when a country acts in disregard of the constitutional, jurisdiction-limiting rules of the international legal order.

If control of international drug traffic and flows of money are an issue, the solution allowed by the international legal order is based on treaty relationships and cooperation in enforcing agreed-upon rules through the independent legislation of each country. The attempt of a single country to enforce the rules presumes a wisdom that experience casts doubts on and an authority that the legal order withholds from fallible governments.

It is unfortunate that Congress has acted as if unaware of the limits international law places on the US as a whole. Through legislation that requires the US to overreach itself, the lawmakers made a bad situation much worse for all of us.

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