against Americans in the local country but Americans in the United States.

There has been a recent statement by one drug syndicate which said that they would come over here and kill Americans systematically, including Government officials.

I simply have to deal with that-if someone makes that kind of an assertion that he's going to kill my legislators and my executive officials, I have to say to them, if you start doing that and you have in effect a military type operation under your command, with billions of dollars at your disposal, I'm going to have to tell my officials: You can treat this as an attack. You might be able to exercise force in self-defense against this kind of a force.

It hasn't happened yet to the extent that it would justify it. We have never asserted this power. But years ago, we wouldn't have said this about terrorism and now I think it's pretty much accepted, as Oliver Revell has testified, that terrorism raises self-defense threats, threats amounting to justifying self-defense.

I can envision, if this drug thing continues, Judge, that we will be confronted with that kind of a situation in the area of drugs as well.

Mr. BARR. Following up on that, Judge, I think that the international trafficking in drugs is as pernicious a threat as many wars

could be.

As Judge Sofaer said, we are talking about organizations that have at their command billions and billions of dollars, more money than most countries in the world. They have private armies. They are heavily armed. They use ruthless tactics that wouldn't be used by most countries in the world. That's why we call them "narcoterrorists."

The impact on the United States is equally drastic. One-third of all felonies committed in the United States are committed by people under the influence of drugs. Ninety percent of all male arrestees in New York City are people who test positive for drugs. Mr. CROCKETT. Thank you, Mr. Chairman.

Mr. EDWARDS. I'm curious as to why we have two Departments obviously at odds.

Were both of these statements cleared by the OMB?

Mr. BARR. Mr. Chairman, I don't think the statements are at odds. Both statements were cleared by OMB and cleared by the respective departments.

The Department of Justice issues legal advice on matters of domestic legal authority. The issue very simply is whether or not there is legal authority in the United States, under our own domestic laws, to engage in extraterritorial arrests without the consent of the host government.

We issued an opinion, as a matter of law, saying, yes, that was not a policy decision.

The bottom line is if we find a terrorist, for example, someone who blows an American 747 out of the sky, and if we find him basking him in some safe haven, enjoying the payoff that he received for blowing Americans out of the sky, the issue is whether or not we have the legal authority under our own laws to go in and arrest him and bring him to justice.

The Department of Justice says, yes, we do have the authority under our own laws. I don't think the State Department disagrees with that.

Mr. EDWARDS. So you believe that if you feel that you want to arrest somebody in a friendly country, a country with which we're not at war, that you can send a secret agent in there, violating the law of that country without asking the permission of that country, and kidnap that individual and put him on an airplane and bring him back home?

Mr. BARR. Both my statement and the example I've just given indicate that we're talking about a limited range of circumstances in the areas of

Mr. EDWARDS. Limited or unlimited, Mr. Barr, my statement is what you have testified to.

Mr. BARR. Let me say what I testified to, and that is that we're talking about a limited range of circumstances in the area of counterterrorism and counternarcotics.

The Department of Justice understands and agrees with the Department of State that when the President is making a decision in the area of extraterritorial law enforcement, we have the intersection of a number of responsibilities. He acts as the foremost law enforcement officer in the country. He acts as the administrator of the foreign relations of the United States and as Commander in Chief. He has a range of responsibilities, including the responsibility to take into account international law and the international obligations of the United States.

He also must consider the practical consequences of what a particular operation may bring about.

He has to consider the precedential value, or danger of the action; and the practical difficulties of carrying out an operation, and the impact it might have on the cooperative relationships we have abroad.

But when push comes to shove, after he has weighed all of those factors, and he determines that it's in the national interest to pursue a particular law enforcement operation overseas, that judgment, as a matter of domestic law, overrides customary international law, and that is an authorized, legal, constitutional action for American agents to engage in.

At the same time, it is a violation, or under many circumstances it could be a violation of international law and we would have to be prepared to take the consequences of that violation.

Mr. EDWARDS. The consequences could be that the FBI agent, whoever you send over to kidnap this person, could be arrested and tried, and the United States could be sued and, of course, the individual would also be liable in a civil action; isn't that correct, and you're going to take that chance?

Mr. BARR. Those, in a given circumstance, could be risks, just like a national security operation could pose risks for the United States, such as the bombing of Libya, that posed risks to the people involved; in fact, pilots lost their lives in that raid.

Mr. EDWARDS. Why did you feel this was necessary at a time when we have for the first time in my 26 years in Congress, a detente with more nations than we have ever had before, with communism crumpling in all parts of the globe, and for us to come out

with this very radical proposal, why did you have to do it at this time?

You're talking about you're so worried about drugs, is that it?

Mr. BARR. The Office of Legal Counsel, we're lawyers; we give legal advice. We give advice as to what the scope of potential legal authority is. We don't make law enforcement policy. Our Office was asked by the FBI to reexamine the 1980 opinion, and we did that, and I think there was broad consensus within the administration that the 1980 opinion was fundamentally flawed and should be reexamined. So the easy answer to the question is, I looked at it because OLC was asked to look at it by one of our clients.

But more than that, it is true that in the postwar confrontation between the United States and communism there have been a number of changes recently. But at the same time, we are facing an increasing menace in the area of terrorists and narco-terrorists. There are still lawless countries in the world that sponsor terrorism that is directed against the United States.

Mr. EDWARDS. Mr. Barr, we keep very careful count in this committee, having oversight jurisdiction over the FBI, of acts of terrorism in the United States. To the great credit of the FBI, where there were more than 100 incidents a decade ago, the incidents this year and last year are infinitesimal; so what's the crisis?

Mr. BARR. Mr. Chairman, I'm sure the families of the people on Pam Am 103 will be glad to know that the incidences in the United States were infinitesimal.

Mr. EDWARDS. Mr. Revell, Mr. Barr said that the FBI asked for this opinion.

Why did the FBI ask for this opinion at this time?

Mr. REVELL. It wasn't at this time, sir; it was about 2 years ago that our Office of Legal Counsel was asked to look at a number of different scenarios.

Mr. EDWARDS. You were asked by whom?

Mr. REVELL. Our Office of Legal Counsel, within the FBI, was asked by our Criminal Investigative Division to look at a number of different scenarios and to determine what the extent of the FBI authority was under those various scenarios.

As a result of that examination internally, our Legal Counsel Division went to the Office of Legal Counsel at the Department and asked that the 1980 opinion be examined in light of the new extraterritorial responsibilities assigned by the Congress under the two acts that I specified.

I must say that we have not asked for any specific authorization to carry out any rendition in any foreign territory of any fugitive without the permission or the consent of that country.

We have had on occasions, however, situations where there have been informal processes utilized. In other words, the law enforcement agencies of a particular country, the judicial authorities of a particular country, or other competent authority have indicated to us a desire to deal with an expulsion rather than an extradition; a turning over at the border rather than a formal process, and so forth.

So what we were attempting to do was to determine the extent of our legal authority so we could stay well within that authority in carrying out our extraterritorial responsibilities.

Mr. EDWARDS. I can certainly think of no law passed by Congress or any provision of the Constitution that licensed the United States to be an international outlaw. What you have described, the administration, any administration, would have these long conferences, say that the situation is so serious that we must do this extraordinary thing, and then somehow or another license the FBI to go kidnap somebody without asking the consent of the nation involved.

I just think it's extraordinary that you would do that, especially at this time when we have these nations emerging into the sunshine of democracy; we want them to copy us as the beacon of democracy. And yet at the same time, we say that we're going to thumb our nose at international law, when really, whenever the President makes that decision that it's so serious-in my lifetime, we've had these situations where in the long run we lose terribly. In 1941, it was Japanese in America that were so dangerous, and so we locked up 40,000 of them. The next thing we had in this country was communism, and it was so dangerous, with Senator McCarthy running wild. We persecuted people for communism in this country, even though it wasn't a crime. And now, of course, it's the war on drugs.

We're not going to give up our liberties or our reputation as an international friend of other countries because we have a perceived threat overseas.

Mr. REVELL. And we haven't asked to do that, sir.

Mr. EDWARDS. Something triggered all of this publicity. We didn't start this argument. We started to read it in the newspapers that you people have come to this wonderful conclusion that the FBI can go overseas and kidnap somebody. And Mr. Barr has a long opinion that says, yes, he can, under certain circumstances, and so forth.

Mr. SOFAER. Under domestic law. That doesn't mean that the President would in fact order such action when it was inconsistent with international duties or treaties, or other law.

Mr. EDWARDS. I wish I would hear the President say, or somebody say, that we're not going to do it. That we are going to be good international citizens.

Mr. BARR. You're not fairly characterizing the opinion or our statements today, Mr. Chairman.

Mr. EDWARDS. You haven't shown us the opinion, Mr. Barr-it would be helpful. We're all lawyers, too, we're grown up and we're also very security-minded here.

Mr. BARR. We're saying that there is authority under domestic law to depart from customary international law. We're not saying that we should thumb our noses at international law. International law is something that should be taken into account. And we're not saying as a matter of policy that this should be done at all or that any particular type of operation should be performed.

Mr. EDWARDS. Do you think that Mr. Rafsanjani in Iran, if his parliament passes or authorizes him to do the same that it would be appropriate for Iran, or Noriega to do the same thing, when they want to arrest somebody in the United States without our permission?

Mr. BARR. Arresting, at least in the case of Iran, would be a step forward. Up until now they've felt free to assassinate their enemies.

But I reject any notion of moral equivalence between the United States and countries that are outlaw countries that engage in terrorism. The United States does not engage in terrorism. We do not allow terrorists from the United States and to use the United States as a base to launch attacks on citizens of other countries. We are leading the fight in the world against terrorism.

Now the purpose of law ultimately is to protect innocent people from predators. And the people we're fighting are ruthless predators. They're not restrained by law. They mock the law, and they manipulate international rules of law to shield themselves.

We are acting in the service of freedom in the civilized world. And in a just system the laws protect the innocent from predation. Mr. EDWARDS. I understand, Mr. Barr, that there has been another opinion issued since June and we formally request a copy. Mr. BARR. I've issued a lot of opinions since June.

Mr. EDWARDS. On this subject. Well, perhaps not.

If there is one, we make a request for it.

Judge Crockett, do you have further questions?
Mr. CROCKETT. Yes, Mr. Chairman.

I would like to know how these principles we have been discussing here relate to or apply to the situation in Panama.

We have in effect said that Noriega is a criminal and he has violated American law, who said the same thing with respect to the issuance of an indictment-the Department of Justice has issued an indictment.

My question is whether or not we make an exception for either de jure or de facto heads of government and that under no circumstances are we prepared to go in and arrest the head of government and bring him back to the United States for trial? Is there such an exception?

Mr. BARR. An exception to what?

Mr. CROCKETT. To the application of this principle that whenever we feel that the national security of the United States is affected, we are justified in going into the country without its consent and arresting whoever needs to be brought to justice and bring them back here.

Mr. BARR. I repeat: As all three witnesses said today, there has been no change in U.S. policy. Our policy is to work cooperatively with governments to suppress terrorism and illegal narcotics trafficking. Any deviation from that policy would be considered at the highest levels of government within the framework of the National Security Council and would involve consultation between the Secretary of State and the Department of Justice.

Mr. CROCKETT. Your answer then is "yes." In any case where the situation is so serious that we have returned any indictment against him, we are justified in going in and arresting him; is that what you're saying?

Mr. BARR. No, that's not what I'm saying.
Mr. CROCKETT. Thank you, Mr. Chairman.
Mr. EDWARDS. Mr. Dempsey.