restraint, and with full sensitivity to the fugitive's physical needs and constitutional rights. We would recommend that the fugitive be informed of his rights and the presence of outstanding warrants immediately upon his apprehension in the the asylum state and again immediately within the territorial confines of the United States. Even if the fugitive waives his rights, we recommend that there be no attempt at interrogation until the fugitive is within the territorial limits of the United States. As far as the participation of asylum state nationals is concerned, we make the following observations: Insofar as foreign nationals are acting at the behest or direction of this government, they will be regarded as American agents by the courts. If they take action outside the ambit of that agency relationship, e.g., resort to torture, this government may successfully maintain that it was not a party to that action. But this does not militate in favor of using asylum state nationals because FBI agents are not likely to engage in improper conduct in the first place. We think that the use of foreign nationals raises more questions of strategy than of law. Only if foreign nationals, without U.S. direction or compensation, deposited the fugitive on American soil would the legal problems in this memorandum be obviated by their presence. JOHN M. HARMON Assistant Attorney General 4 Eg.. Lira, 515 F.2d at 70–71. On November 8, 1989, Assistant Attorney General William P. Not having a copy of the opinion is holding up the Subcommittee's efforts to examine this issue, which is a matter of serious public and Congressional concern. The Subcommittee would like to hold a further hearing on this issue, but we are finding that some of the most competent witnesses are understandably reluctant to comment upon a legal analysis they have not seen. In examining an issue like this one, the effective exercise of legitimate Congressional oversight depends on access to detailed information on the Department's views. The FBI has no objection to giving us the opinion. It is I will be calling you immediately after the Thanksgiving holiday to discuss this matter personally. I hope that we can continue our cooperative relationship. Sincerely, Don Edwards Don Edwards Chairman Subcommittee on Civil and Constitutional Rights DE: jdw Office of the Attorney General Washington, A. C. 20530 November 28, 1989 Honorable Don Edwards Chairman, Subcommittee on Civil and Constitutional Rights Committee on the Judiciary Washington, D.C. 20515 Dear Mr. Chairman: I am writing in response to your letter to me of November 20, 1989, concerning the legal opinion that the Office of Legal Counsel (OLC) submitted to me concerning the authority of the FBI to arrest suspects abroad. Apart from classified information, there is no category of documents in the Department's possession that I consider more confidential than legal opinions to me from the Office of Legal Counsel. They are my lawyers, and it is essential to the discharge of my responsibilities that the legal advice I receive from them be treated as confidential. That has been the policy and practice with prior Attorneys General. The Department's established method for communicating to Congress its opinion on legal issues is to provide a letter or testimony setting forth the Department's legal position. Thus, OLC Assistant Attorney General Bill Barr submitted for a hearing of your Subcommittee lengthy written testimony summarizing the principal conclusions of the OLC opinion, and at the hearing he answered your Subcommittee's questions regarding the opinion. You stated in your letter that other witnesses need a statement of the Department's legal analysis before they can comment on the legal issues that are raised. I am confident that Mr. Barr's testimony will satisfy the Subcommittee's interest in providing witnesses with such a statement. I would also be pleased to make Mr. Barr available to brief you further concerning the opinion. In addition to the need for confidentiality that exists with respect to all legal advice that OLC provides me, the OLC opinion that you have requested implicates a particularly compelling confidentiality interest. If the Department were ever to prosecute a terrorist who is arrested pursuant to the legal authority that is analyzed in the OLC opinion, that opinion would certainly be privileged and the defendant would not be able to compel production. We are simply not willing to waive our rights in this regard. Mr. Chairman, I am committed to having a cooperative relationship with you and the Subcommittee. I trust, however, that you will understand the importance I place on the confidentiality of OLC's legal advice to me, as well as the need to protect necessary legal privileges in our effort to combat terrorism. ncerely, Dick Thornburgh Thanks for your persistence in returning my phone call. It was good to talk with you. As I indicated, we don't ask for OLC opinions very often, June 1982 - the FBI testified before our Subcommittee on February 1983 - Theodore Olson, Assistant Attorney General, 1984 - the Subcommittee was provided an OLC opinion on 1987 1989 Attorney General Edwin Meese III and Assistant last month, the Intelligence Committees were provided the OLC opinion on the assassination ban. |