FBI AUTHORITY TO SEIZE SUSPECTS ABROAD WEDNESDAY, NOVEMBER 8, 1989 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS, COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 9:50 a.m., in room 2141, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding. Present: Representatives Don Edwards, Geo W. Crockett, F. James Sensenbrenner, Jr., William E. Dannemeyer, and Craig T. James. Also present: James X. Dempsey, assistant counsel, and Colleen Kiko, minority counsel. Mr. EDWARDS. The subcommittee will come to order. This morning the subcommittee considers whether or not the FBI can seize a suspect from a foreign country without the cooperation or the consent of that country. We are going to have witnesses from the Department of Justice and from the State Department and I will reserve any further comments until after the testimony. Mr. Sensenbrenner. Mr. SENSENBRENNER. Mr. Chairman, I have an opening statement. Mr. EDWARDS. The gentleman is recognized. Mr. SENSENBRENNER. Mr. Chairman, we're here today still suffering from a hangover of Jimmy Carter's last month in office. After he was defeated for the Presidency by Ronald Reagan in 1980, his Justice Department came up with guidelines relative to FBI activities in the seizing of international terrorists abroad. We're having a hearing on these guidelines now, over 8 years after the fact, and after two more Presidential elections, where the sons of Jimmy Carter did not make it through the polling place. I am concerned about the timeliness of this hearing and I am also concerned about the fact that there appears to be an attempt to hamstring the efforts of the FBI in the apprehension of international terrorists abroad and returning them to justice in the United States. If the Carter administration guidelines are continued in force, the only people who will take joy in that are the Muammar Qadhafis, the Manuel Ortegas, and the drug bosses of the Medillin drug cartel, and that is an accomplished fact. We're no longer fortress America. It seems to me that our law enforcement personnel ought to be able to project themselves abroad in certain narrowly selected cases where the national interest of the United States and, indeed, the safety and peace of the world is at hand. I think those are the guidelines that the FBI has conducted itself during the present administration as well as during President Reagan's two terms in office. To suggest that the President's power in international law is absolutely barred to do this, in my opinion, is unconscionable. It seems to me that we ought to be able to do the right thing, as Ronald Reagan did in the Achille Lauro hijacking attempt and the bringing of the Egyptian plane down in Italy in the apprehension of some of the terrorists there. I thank the chairman. Mr. EDWARDS. I thank the gentleman for his observation. I will only make one point. I'm not going to make a speech, but I would like to point out that already the Iranian Parliament has cited this Justice Department opinion and says that they have the same right to come into the United States and arrest Iranian fugitives without our knowledge and kidnap them. Mr. Dannemeyer, do you have an opening statement? Mr. DANNEMEYER. No, Mr. Chairman. Mr. EDWARDS. The gentleman from Florida. Mr. JAMES. No. Mr. EDWARDS. No statement. Our witnesses today are Mr. William P. Barr, Assistant Attorney General, Office of Legal Counsel, Department of Justice; the Honorable Abraham D. Sofaer, Legal Adviser, U.S. Department of State, and our friend of many years, Oliver B. Revell, Associate Deputy Director for Investigations, Federal Bureau of Investigation. Mr. Barr, I believe that you're going to be first. [Witnesses sworn en masse.] Mr. EDWARDS. Thank you. Without objection, the full statements of all three witnesses will be made a part of the record. We welcome you, and Mr. Barr, you may proceed. STATEMENT OF WILLIAM P. BARR, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE Mr. BARR. Thank you, Mr. Chairman. Mr. EDWARDS. Mr. Barr, you'll have to give the whole statement insofar as it only arrived this morning. I might point out, that all three testimonies violated the rules of the House. We're supposed to get this testimony 48 hours in advance and several of them got here late last night but none of them complied with the rules. So insofar as you're concerned, Mr. Barr, please read the entire statement. Mr. BARR. I am pleased to be here today to discuss the extent to which the United States has authority under its own domestic laws to carry out extraterritorial arrests which may depart from principles embodied in international law. The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffickers. Many of these criminal organizations target the United States and U.S. citizens while operating from foreign sanctuaries. While many nations have cooperated in our efforts to combat terrorism and narcotics trafficking by entering into extradition agreements and providing us with other forms of assistance, some foreign governments have unfortunately failed to take steps to protect the United States from these predations, and others actually act in complicity with these groups. It was in this context that the Office of Legal Counsel reexamined an opinion that was issued in 1980, the last year of the Carter administration. The 1980 opinion had potentially broad ramifications for the conduct of extraterritorial law enforcement activities by the Federal Bureau of Investigation and other executive branch officials. The question presented was whether the FBI had the authority under U.S. law to arrest a fugitive in a foreign country without that country's consent under classic principles of customary international law. Assuming on the facts before them that the apprehension in question would most likely constitute a violation of customary international law, the authors of the 1980 opinion determined that the FBI had no authority under domestic law to perform such an arrest. The 1980 opinion based its conclusion on two separate grounds. First, the 1980 opinion determined that "U.S. agents have no law enforcement authority in another nation unless it is the product of that nation's consent," reasoning that the authority of the United States, as a sovereign, is necessarily "limited by the sovereignty of foreign nations." In other words, the 1980 opinion suggested that the President and the Congress are legally powerless under U.S. law to authorize action in a foreign country that departs from customary international law. Second, regardless of whether the United States, as a sovereign, has the authority to act in contravention of customary international law, the 1980 opinion concluded that the FBI could never make apprehensions in contravention of customary international law under its own general enabling statutes. Although the statutes themselves do not restrict the extraterritorial reach of the agency's authority, the 1980 opinion reasoned that they must be construed restrictively to preclude the FBI from departing from customary international law norms in all circumstances. Because such limitations may impair our ability to defend ourselves from overt physical assaults on our citizens by terrorists and the equally pernicious large-scale trafficking of drugs into the United States by foreign criminal organizations, the FBI asked the Office of Legal Counsel and the Department of Justice to reexamine its 1980 opinion. On June 21, 1989, we issued an opinion partially reversing the 1980 opinion. Although the content of the 1989 opinion, like other advice rendered by the Office of Legal Counsel, must remain confidential, I am happy to share with the committee our legal reasoning and our conclusions. Before turning to these legal issues, I think it is important that the committee understand Mr. EDWARDS. Mr. Barr, may I interrupt? Why does it have to remain confidential? Is this a change in policy? We have a copy of other nonclassified opinions. This is not a classified document, Mr. Barr. Why are you withholding it from this committee, and have you sent it to any other committees? Mr. BARR. No, we have not sent the opinion to any other committee. Mr. EDWARDS. Yes, I believe you did. Mr. BARR. No. Mr. EDWARDS. Well, you sent the assassination one to the Intelligence Committee. Mr. BARR. We issued an opinion concerning Executive Order 12333 at the request of the Director of Central Intelligence when he asked for our advice. It was in the context of a dialog he was having with the House and Senate Intelligence Committees, and he asked us to prepare a memo, an opinion, which he would share with those committees. So that opinion was written with the expectation that it would be shared with the Intelligence Committees. Now, this is not a change in policy, Mr. Chairman. Since its inception, the Office of Legal Counsel's opinions have been treated as confidential. Mr. EDWARDS. Up until 1985 you published them, and I have it in front of me opinions of the Office of Legal Counsel-the previous opinion. [The previous opinion, published in 1985, is reproduced in the appendix.] Mr. BARR. Our office has a limited publication project, where after a number of years have transpired, we review opinions and select certain opinions that we think it's in the public interest to publish. And after careful review in the executive branch, including review at the White House and within the Department of Justice, and all concerned agencies, we publish them. A 1980 opinion was published in 1985-5 years after its publication. Prior to that time, it was not published. I'm sure you can appreciate that the Attorney General servesone of his core functions is to provide legal advice to the President, and the Office of Legal Counsel performs that function on behalf of the Attorney General. We provide legal advice to the White House and to Cabinet agencies. It has been the long established policy of OLC that except in very exceptional circumstances, the opinions must remain confidential. We do not even share our opinions with other executive branch agencies that are unconcerned, and we do not even share our opinions within the Department of Justice to different components within the Department. We try to keep them confined to the clients who are directly operationally affected by it. This policy is based on the very same principles that the attorney-client privilege in general is based upon. It's very important |