We believe-and all of us, I think, support this-that if some act of that kind happens, we're not supposed to go to war. We are supposed to act what we think necessary to stop that kind of action, but not beyond that.

Mr. DEMPSEY. But the insertion of agents into a foreign country would then trigger a right of self-defense on the part of that nation?

Mr. SOFAER. It could. In certain circumstances, it could.

Mr. DEMPSEY. And how isn't that moral equivalency?

It seems to me like you are saying that sauce for the goose, sauce for the gander.

Mr. SOFAER. No one here is advocating these kinds of actions when they would amount to attacks or other forms of aggression. If we were acting in self-defense, it would follow that we would not be acting in a manner that could be characterized as aggression.

An act in self-defense is a justifiable act under international law. It might violate the territorial integrity of another state. They may claim that we are acting as aggressors; and in fact, Libya did claim that we were acting as aggressors. But we believe that in good faith on the basis of very, very powerful evidence, that we were acting in self-defense.

If you agree that we were acting in self-defense, then Libya has no justification for treating our action as a form of aggression.

Mr. DEMPSEY. Mr. Revell, how could you possibly send agents into a country without host country permission and carry out an abduction and expect them to get out of the country safely?

Mr. REVELL. I don't think that I can discuss ways that we could carry out an operation like that tactically in an open session; of course, it can be done.

The difference between that and a covert operation would be that as in the the Fawaz Younis case, which was, of course, an arrest on the high seas, we would immediately bring the person before a magistrate and the charges would be read in public and the circumstances of the arrest would be made a matter of public record. And, of course, the individual defendant would have a right to challenge the authority of that arrest in court.

But, again, let me emphasize that we have no such plans and we have no such intentions. But let me give you an example of where we believe that it would be justified: A situation where there is no law; where there is no effective government-and where from that territory there were attacks being made against our civil aviation, hostages being held, and there was an inability of the law enforcement agencies of Government to do anything to protect U.S. citizens, under those circumstances we would be derelict if we did not attempt to execute in a positive fashion the law of the United States.

That would not be our decision. That would be the decision of the President, the Attorney General, and so forth.

But I think we would have to propose, where there was no other alternative, and American lives had been lost and were further at risk, that that be an alternative.

Mr. EDWARDS. That's a different formula than described by the other witnesses, but we'll accept that.

Mr. REVELL. That was our intention.

Mr. EDWARDS. And different in your testimony, too, your testimony is that if the Attorney General says do it, you do it.

Mr. REVELL. That was not the intent of my testimony, sir. My intent was that that you take orders from the Attorney General. Mr. EDWARDS. But your explanation is quite different than Judge Sofaer's and Mr. Barr's. It is much more restrictive, much more restrictive.

Mr. SOFAER. I certainly didn't mean to suggest that I had a more expansive view of the situation, but I think the record will speak for itself, Mr. Chairman.

Mr. EDWARDS. Thank you very much, gentlemen.

I want to point out that this committee did not initiate this national or international argument that is going on, that we only read about it in the newspapers-it came from you people. There is a great deal of concern, and I share it. Other nations and most people in the United States who have read the accounts and watched whatever takes place on television understand or believe that there has been a new announcement by this administration that hereafter the FBI can go into friendly countries, countries with which we are not at war, and kidnap people that we want back in the United States, without the consent of the host country. That's the way it has been reading and the voluminous opinion, Mr. Barr, that we haven't seen, apparently-I'm not quite sure what it says, other than to say that, yes, indeed, in some circumstances this can happen.

Mr. BARR. My testimony summarizes the principal conclusions of the opinion.

Mr. EDWARDS. We thank you. We thank you all for being here. It has really been very helpful and we appreciate your testimony. The hearing is adjourned.

[Whereupon, at 11:30 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]

The Subcommittee, which has oversight responsibility for
the Federal Bureau of Investigation, has long had an interest in
issues of anti-terrorism, including FBI activities under extra-
territorial jurisdiction. We understand that your Office of
Legal Counsel this summer prepared a legal opinion on the
authority of the FBI to override customary or other inter-
national law in the course of extraterritorial law enforcement
activities. To assist the Subcommittee in reviewing this issue
and preparing for an upcoming hearing, we would like a copy of
the recent opinion and the 1980 one that it reportedly
supersedes.

It is my understanding that the opinion is unclassified and that it does not discuss on-going investigations or litigation. Therefore, I can see no damage that would result from disclosure.

Having the opinion in advance of the hearing would greatly facilitate the testimony of the Department's witness. It would save the Subcommittee from fishing around with questions about the scope of the opinion. And it would certainly correct any misimpressions about the effect of the opinion that may have resulted from press accounts.

I thank you for your attention to this request. I would like to hear from you on this request before our hearing.

This will respond to your letter of November 2, 1989 to the Attorney General requesting copies of two opinions prepared by the Office of Legal Counsel on the subject of the Federal Bureau of Investigation's extraterritorial law enforcement authority, one dated June 21, 1989, and one dated March 31, 1980.

I am enclosing a copy of the 1980 opinion, which the Office of Legal Counsel formally published as part of a collection of opinions in 1985. We are unable to provide you with a copy of the 1989 opinion that you have requested, because it is the established view of the Department of Justice that current legal advice provided by the Office of Legal Counsel is confidential.

Enclosure

Sincerely,

силтания

Carol T. Crawford

Assistant Attorney General