In Miami, Noriega Cries "Foul!"

By Andrea Sachs

Dressed in a khaki four-star general's uniform, Manuel Noriega walked to the front of a Miami courtroom last week in his first public appearance in months. The former Panamanian dictator read an open letter accusing the U.S. government of trying to deny him a fair trial. "It is painfully obvious that the government does not wish me to be able to defend myself," he told Federal Judge William Hoeveler. "They have taken my money, deprived me of my lawyers, videotaped me with my lawyers, wiretapped my telephone calls with my lawyers and even given them to the press. It is to the benefit of the government that I cannot defend myself, for they fear what I know."

Noriega's extraordinary performance was carefully scripted melodrama, but he was not the only one wondering if he would ever face a verdict in a U.S. court. The government last week found itself floundering even further in its bid to convict Noriega of allowing Panama to be used for drug shipments by the Colombian cocaine cartel. During his hearing, Noriega's three attorneys sought to have Hoeveler dismiss the case on the basis of government misconduct, including the alleged illegal taping of Noriega's telephone conversations with his lawyers from his cell at the Metropolitan Correctional Center near Miami. Said attorney Frank Rubino: "The quality and degree of the government's crimes is unlike anything seen since Watergate."

Rubino's charge was hyperbolic, but the ruckus over Noriega's tape-recorded telephone conversations had taken a bizarre new turn as the FBI got into the act. Declaring they were looking for "stolen government property," two bureau agents visited the hotel next to CNN's Atlanta headquarters, where Cable News Network investigative reporter Marlene Fernandez was staying. The agents said they were summoned by hotel security, but they did not have a warrant, and they carried off a videotape and sundry papers, despite the challenges of a CNN lawyer on the scene. Network president Tom Johnson said he protested the action "in the strongest terms" to FBI officials in Washington. The next day an FBI agent appeared at the Washington bureau of CNN, asking to see Fernandez and her producer. Neither was in the bureau at the time.

The FBI was looking for scratchy recordings of Noriega's conversations in Spanish that CNN had revealed were in its possession. When Hoeveler issued an injunction forbidding broadcast of the recordings, CNN, which had previously disseminated parts of several tapes, still went ahead to air one purporting to ^ contain Noriega's talks with attorneys. After the 11th Circuit Court of Appeals in Atlanta upheld Hoeveler's prohibition, the network appealed to Supreme Court Justice Anthony Kennedy. He referred the matter to the full nine-member bench, which at week's end was considering an emergency CNN petition to rescind the ban.

Noriega's lawyers verified that the tapes, apparently seven in all, were recordings of their client's telephone chats, including at least one with his legal defenders, discussing potential prosecution witnesses. All such calls are normally monitored by prison authorities, unless officials know the talks specifically involve a prisoner's attorneys. The question was whether the tapings violated the no-eavesdropping rule. Noriega's lawyers argued that the Sixth Amendment protection of Noriega's privileged communication with counsel had in fact been violated. Meanwhile, CNN claimed that its First Amendment freedoms from prior restraint had been abridged.

U.S. law-enforcement officials were clearly disturbed about CNN's possession of the tapes and about how the network got them in the first place. The Panamanian government has claimed to have Noriega recordings that it received from the U.S. State Department; speculation was that the tapes came into reporter Fernandez's hands from Panamanian sources.

Whatever the provenance of the recordings, their squelching by Judge Hoeveler opened a second front in the court battle. A number of publishers, including the Time Inc. Magazine Co., TIME's parent organization, and the New York Times Co., filed an amicus brief in support of CNN's petition to be freed from the restraining order. A similar brief was filed by several major television networks. Says Jane Kirtley, director of the Reporters Committee for Freedom of the Press: "News organizations are in the business of exposing governmental misconduct, and that's what CNN has done."

The court is expected to hand down a ruling on the injunction this week. It has never upheld the issuance of a prior restraint on the publication or broadcast of news, considering it, in a 1976 decision, to be the "most serious and least tolerable infringement on First Amendment rights."

In the midst of the tapes confusion, Noriega's lawyers added yet another twist to the case. Their client, they said, was broke. The Panamanian government claims that Noriega looted the country of up to $300 million, but all the booty that has so far come to light, an estimated $20 million in 27 bank accounts around the world, has been frozen. The attorneys, who charge up to $350 an hour, have not been paid in 11 months, and say they can no longer afford to represent the former Panamanian leader. They asked Judge Hoeveler to set aside a ceiling of $75 an hour for government-paid public defenders so that they could continue representing Noriega for their normal fee, but the judge seemed unmoved. He said "some top-flight criminal-defense lawyers" were willing to handle the case at the government's comparatively low hourly scale.

With reporting by Cathy Booth/Miami and Jerome Cramer/Washington