U.S. officials said yesterday that Palestine Liberation Front leader Mohammed Abbas can be prosecuted for the hijacking of the Italian cruise ship Achille Lauro, even though a radio transcript released in Israel shows that Abbas had urged the four hijackers not to harm the ship's passengers.
Federal law enforcement officials said the transcript demonstrates that Abbas and the four hijackers had an earlier plan, which Abbas' organization has acknowledged was a suicide raid on an Israeli port city.
Therefore, these officials said, Abbas can be held criminally liable for the ship hijacking that followed when the original plans went awry, even if he did not approve it in advance.
Israeli officials, who released the transcript, said they had intercepted an Oct. 9 radio communication between Abbas and the hijackers of the Achille Lauro.
According to the transcript, Abbas, using a code name of Abu Khalid, told the hijackers to apologize to the passengers and assure them that "our objective was not to take control of the ship."
But one U.S. official said yesterday, "When you set something illegal in motion, you're responsible for where it goes."
Abbas has proclaimed his innocence and claimed credit for negotiating an end to the hijacking. But U.S. officials said he could be prosecuted under the "doctrine of transferred intent" for allegedly joining in the original plot against Israel.
"A co-conspirator is guilty of acts committed by other co-conspirators in the furtherance of the conspiracy, even if the conspiracy ends up changing because of events," said one U.S. official close to the case.
"If you say we were planning to go to the Israeli port of Ashdod and blow up the Israelis and we got stuck on the boat . . . the course of action was set in motion by the conspiracy," the official said.
Asked about Abbas' comments on the transcript, this official said: "This man clearly understands what the objective of the mission was. It's clear from that transcript he knew what was going on."
The legal questions surrounding Abbas, who has eluded U.S. attempts to have him arrested in both Italy and Yugoslavia, may be more than academic.
Congressional sources with access to intelligence information said yesterday that officials believe there is a good possibility that Abbas is still in Yugoslavia, and they have not abandoned hope that the 38-year-old Palestinian will be apprehended.
Abbas, who U.S. officials have accused of masterminding last week's ship hijacking, was with the four terrorists on an Egyptian airliner that was forced down by U.S. Navy warplanes.
Despite urgent requests from American authorities, Italy allowed Abbas to fly to Yugoslavia, which also refused to detain him. The Italian decision has touched off a political storm within Rome's governing coalition.
The Justice Department has issued arrest warrants against Abbas and the four hijackers, charging them with hostage-taking, piracy and conspiracy, and prosecutors plan to present evidence to a federal grand jury here today.
Italy, however, has taken the lead in prosecuting the four hijackers, who are in an Italian prison.
U.S. law enforcement officials have refused to disclose their evidence against Abbas, saying that this could jeopardize the criminal proceedings.
The officials seemed surprised that the Israelis had released one of several transcripts of radio conversations involving the hijackers, and stressed that the Justice Department has other evidence against Abbas in addition to the radio transcripts.
Attorney General Edwin Meese III said before the transcript was released that the United States has "hard evidence" that Abbas was "a principal in the hijacking."
Meese said "there are good reasons not to go public" with the evidence because it "might possibly prejudice the trial" of the hijackers.
At a news conference, Meese also repeated the Reagan administration's contention that Italy had breached its extradition treaty with the United States by releasing Abbas.
Meese said that "an evaluation of the evidence is not normally part of the extradition process."
Meese dismissed the fact that Abbas, a close associate of Palestine Liberation Organization chairman Yasser Arafat, was carrying an Iraqi diplomatic passport when the Egyptian jet was forced down in Italy.
"A diplomatic passport is not a magic wand to shield a person from criminal liability," Meese said, adding that Abbas was not a fully accredited diplomat.
At the White House, spokesman Larry Speakes said that U.S. Ambassador to Italy Maxwell Rabb had delivered the arrest request in a diplomatic note at 6 a.m. last Saturday, "many hours" before Abbas left Italy.
"Our request for a provisional arrest was accompanied by a substantial body of evidence, and we've told the Italians that corroborating information was being provided on an ongoing basis," Speakes said.
Speakes added that if the Italians had concerns about the strength of the evidence, they should have said so before releasing Abbas.
The extradition treaty, revised last year, says that "in case of urgency, either country may apply for the provisional arrests of any person charged or convicted of an extradictable offense."
The treaty says that such arrests can last up to 45 days and require only an identification of the person sought, a valid arrest warrant and a brief statement of the facts of the case.
One federal official called Italy's claims of insufficent evidence a "totally false issue." Another said: "The fact is, they didn't want to hold him."
The dispute with Prime Minister Bettino Craxi's government is a source of regret to U.S. officials, who in recent years have regarded Italy as perhaps the most cooperative of America's NATO allies in a variety of areas.
Italy has been in the forefront of European countries cooperating with the United States in the fight against international terrorism and such organized crime activities as narcotics trafficking.
The U.S. interest in seeing Italy attain political stability was a contributing factor in Washington's tactic of protesting the Abbas incident and then hoping the incident would cool down, officials said.
However, despite their expressions of regret at the Italian government's imminent fall, U.S. officials said the United States had no choice other than to make clear its displeasure in the strongest possible terms.
They say that, despite the legal excuses offered by Italy, there is no doubt that Abbas was released for political considerations. The officials note the importance attached by Craxi and his foreign minister, Guilio Andreotti, to cultivating close ties with the PLO and Arab states.
In the U.S. view, if the Craxi government had kept Abbas in custody, it would have endangered that policy.