Louisiana Law Review
Volume 71 | Number 4
Summer 2011
America's Longest Held Prisoner of War: Lessons
Learned from the Capture, Prosecution, and
Extradition of General Manuel Noriega
Geoffrey S. Corn
Sharon G. Finegan
Repository Citation
Geoffrey S. Corn and Sharon G. Finegan, America's Longest Held Prisoner of War: Lessons Learned from the Capture, Prosecution, and
Extradition of General Manuel Noriega, 71 La. L. Rev. (2011)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol71/iss4/2
This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for
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America's Longest Held Prisoner of War: Lessons
Learned from the Capture, Prosecution, and
Extradition of General Manuel Noriega
Geoffrey S. Corn*
Sharon G. Finegan"
INTRODUCTION
In the fall of 1986, while serving his first tour as an Army
officer in Panama, one of the authors, Professor Corn, participated
in a large-scale field training exercise called Operation Kindle
Liberty. For three weeks he worked alongside members of the
Panamanian Defense Force (PDF) with the mission of enhancing
the capability of the Panamanian military to work side-by-side
with the U.S. military to defend the Panama Canal. At the end of
their training, as is customary, the commanding generals of both
armies came to the field to visit the troops. Then-First Lieutenant
Corn stood in an impromptu formation outside of the combined
U.S.-PDF tactical operations center as General John Galvin,
Commander of United States Southern Command, and his
Panamanian counterpart General Manuel Noriega walked down the
row of U.S. and Panamanian officers, shaking hands and
congratulating them for completing a successful exercise.
Nineteen years later, Professor Corn once again extended his
hand to General Noriega. This time, however, he did so in a
radically different context. General Noriega was a prisoner in the
Federal Correctional Facility in Miami, Florida, and Professor
Corn was the U.S. Army's senior law of war expert advisor, in
Miami to provide expert assistance to the prison warden during
General Noriega's annual visit by the International Committee of
the Red Cross (ICRC). As a prisoner of war (POW) protected by
the Geneva Convention Relative to the Treatment of Prisoners of
War, General Noriega was entitled to an annual ICRC inspection
visit. The warden requested assistance that year from the Army to
ensure that prison personnel clearly understood the reasons for and
actions in relation to the visit.
Copyright 2011, by GEOFFREY S. CORN & SHARON G. FINEGAN.
Associate Professor of Law, South Texas College of Law in Houston,
Texas. Previously Lieutenant Colonel, U.S. Army, and Special Assistant, Law of
War Matters, to the U.S. Army Judge Advocate General. I would like to thank
Kelly Hughes for her excellent contributions in support of completing this Article.
** Associate Professor of Law, South Texas College of Law.
*
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2LOUISIANA LAW REVIEW
[Vol. 71
After meeting with a representative from the ICRC, Professor
Corn asked if he could accompany the representative to meet
General Noriega that morning. The representative kindly agreed,
and they entered General Noriega's two-room cell. The man who
shuffled out of his sleeping cell was much different than the barrelchested general Professor Corn remembered meeting almost 20
years earlier. General Noriega extended his hand in welcome, and
as Professor Com shook it, he told General Noriega that the last
time they shook hands was in 1986 in Provincia Chiriqui in
Panama. General Noriega smiled and responded that the tables had
turned: "Back then I was checking on you; now you are checking
on me."
As Professor Corn left the prison that day, he was struck by
General Noriega's odd journey. In a one-year period of time, he
and the army he commanded transformed from an ally of the
United States to public enemy number onel-a transformation that
exasperated General Noriega at the time and one that he will
unlikely ever fully understand. Overnight, a simmering conflict
emerged between the U.S. armed forces in Panama and General
Noriega's PDF. From March of 1987 until the invasion in
December 1989, the U.S. military engaged in a low-level struggle
triggered by the national change in policy towards General
Noriega, a struggle that was characterized primarily by harassment
but that occasionally involved flashes of violence that almost
triggered all-out war.2 This standoff ultimately culminated in
Operation Just Cause, the U.S. invasion of Panama ordered by
President George H.W. Bush that led to the PDF's destruction and
the capture of its commanding general.3 General Noriega was
ignominiously transported to the U.S. by military aircraft, turned
over to federal authorities, and subsequently tried and convicted in
the United States District Court for the Southern District of
Florida.4 Only recently was General Noriega released-the
commanding general of an army that no longer existed. However,
although he completed serving his sentence, General Noriega did
not regain his freedom. Instead, he was extradited to France, where
1. See Matthew Reichstein, Comment, The Extraditionof General Manuel
Noriega: An Application of InternationalCriminal and HumanitarianLaw to
Answer the Question, "If So, Where Should He Go?," 22 EMORY INT'L L. REv.
857, 857 (2008).
2. See Alan Berman, In Mitigation of Illegality: The U.S. Invasion of
Panama,79 KY. L.J. 735, 739-43 (1991).
3. Id. at 735, 743.
4. United States v. Noriega, 117 F.3d 1206, 1210 (11th Cir. 1997).
2011]
AMERICA'S LONGEST HELD POW
1113
he was tried and convicted for money laundering offenses. He is
now serving an additional seven-year sentence in a French prison.5
General Noriega's journey through the U.S. legal system
provides insight into an issue that has been consistently avoided in
connection with the current "war on terror": the consequence of
granting wartime captives prisoner-of-war status and its impact on
the ability of the U.S. to use its criminal law system to hold such
captives accountable for their pre-capture conduct. Ironically,
General Noriega's saga also triggered a legal battle over the effect
of the Military Commission Act of 2009 (MCA), a law enacted by
Congress to provide for the trial by military courts of captured alQaeda and Taliban personnel. In what can only be considered the
final ironic twist of fate for General Noriega, his effort to fight
extradition turned on the validity of the MCA's provision limiting
access to judicial remedies for enemies captured in a war radically
different from the one in which General Noriega was capturedcaptives who, unlike Noriega, did not even qualify for the
protections of the Prisoner of War Convention. 6 Nonetheless, like
so many other legal issues related to his status as a U.S. captive,
the MCA nullified the last modicum of value General Noriega
sought to derive from his status as a prisoner of war, preventing
him from invoking that status as a barrier to his extradition.
As America's longest-held prisoner of war, General Noriega's
capture, detention, prosecution, and ultimate extradition provide
many important lessons in the balance between the protection of
POWs and the flexibility afforded to detaining states to address
pre-capture misconduct committed by these captives. It is therefore
ironic that in the post-September 11 debates over the relative
merits of extending POW status to captured al-Qaeda and Taliban
personnel, so little attention has been paid to the plight of General
Noriega. His ouster from power, capture, trial, conviction, 20 years
of incarceration, and most recent efforts to block extradition offer a
fascinating insight into the intersection of national security and
law, both domestic and international. What was his status upon
capture? If a POW, what was the scope of his lawful immunity,
and what was his status upon conviction in a domestic criminal
court? How did Congress criminalize his conduct in Panama? Did
an invasion to bring him to justice implicate due process concerns?
5. Maia de la Baume, France:Freedomfor NoriegaRejected, N.Y. TIMES,
Dec. 16, 2010, at A8.
6. See Memorandum from George W. Bush to the Vice President et al.
(Feb. 7, 2002), availableat http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB
127/02.02.07.pdf (establishing the U.S. determination that neither Taliban nor
al-Qaeda detainees qualify for prisoner of war status).
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4LOUISIANA LAW REVIEW
Would his extradition violate the Geneva Prisoner of War
Convention, and if so, what remedy did the Convention provide for
the General?
Through General Noriega's journey, this Article will survey
each of these legal issues and the law relied upon to resolve them.
The authors offer this survey in order to highlight how General
Noriega's POW status never really impeded the ability of the U.S.
to address the misconduct it sought to sanction him for. Because
the authority to prosecute wartime captives is as important today as
it was when the U.S. took General Noriega into custody, the
authors believe the lesson of General Noriega's experience
deserves greater attention. In many ways it rebuts the flawed
assumption that POW status and protection of the nation from
individuals who commit pre-capture misconduct directed against
the national security interests of the nation are somehow
incompatible. Instead, General Noriega's legal saga will offer
insight into the viability of existing law to address the challenge of
such captives, even in the context of the contemporary struggle
against international terrorism. Although the authors do not intend
to suggest that these lessons mandate reconsideration of the status
of captured al-Qaeda and Taliban personnel, they do call into
question the credibility of the argument that granting POW status
(or perhaps only combatant immunity)7 will disable the U.S. from
subjecting them to criminal sanctions for their pre-capture
misconduct.
I. CRIMINAL,
POW, OR SOMEWHERE
IN BETWEEN?
A. Applicability of the Law of War to GeneralNoriega's Captivity
General Noriega initially challenged the government's effort to
bring him to justice by asserting that the prosecution was barred by
international law.8 Specifically, General Noriega asserted that he
was entitled to status as a POW in accordance with the Geneva
Convention Relative to the Treatment of Prisoners of War (GPW),9
from criminal prosecution for
and as a result he was immune
0
violation of U.S. domestic law.'
7. See Geoffrey S. Corn, Thinking the Unthinkable: Has the Time Come to
Offer Combatant Immunity to Non-State Actors?, 22 STAN. L. & POL'Y REv. 253
(2011).
8. United States v. Noriega, 746 F. Supp. 1506, 1511-12 (S.D. Fla. 1990),
aff'd, 117 F.3d 1206 (11th Cir. 1997).
9. Id.
10. Id. at 1525.
2011]
AMERICA'S LONGEST HELD POW
1115
By asserting POW status in the context of his criminal
prosecution, General Noriega forced the issue of Geneva
Convention applicability on the Federal District Court judge
assigned to his case." This generated an issue of first impression
for the federal courts: no criminal suspect (or any individual
detained by the United States) had prior to this case asked for a
judicial determination of POW status.12 Instead, this determination
had previously fallen within the exclusive prerogative of the
executive branch. 13
To understand the complexity of this issue, it is first necessary
to understand the limited situations in which the GPW applies.
This treaty, like the broader law of war itself, is a component of the
lex specialisl4 international law developed to regulate the conduct
of hostilities and to protect victims of war. Accordingly, it is not a
source of law constantly in force; instead, it applies only to those
situations it was developed to regulate, namely, armed conflicts."
Indeed, the term "armed conflict" is itself a term of art, adopted
after the Second World War to ensure this branch of international
law would apply to armed hostilities between states, even if the
states themselves disavowed the existence of a technical state of
war.16
Accordingly, not all individuals captured by U.S. armed forces
are ipso facto entitled to POW status.' 7 Instead, POW status is
applicable only to individuals captured during the course of an
international armed conflict-a dispute between two or more states
leading to the intervention of armed forces, resulting in armed
hostilities or uncontested belligerent occupation.' 8 Claiming POW
status is therefore only applicable to individuals captured in the
context of interstate armed hostilities.19 Even then, POW status is
11. Id.
12. Id. at 1511.
13. United States v. Noriega, 808 F. Supp. 791, 796 (S.D. Fla. 1992).
14. See David Glazier, Full and Fair by What Measure? Identifying
InternationalLaw Regulating Military Commission Procedure, 24 B.U. INT'L
L.J. 55, 99 (2006) (showing that the GPW represents specific law of war
provisions that would supersede more general legal provisions).
15. Geneva Convention Relative to the Treatment of Prisoners of War art. 2,
Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva III].
16. INT'L COMM. OF THE RED CROSS, COMMENTARY OF THE THIRD GENEVA
CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 20 (Jean
Pictet ed., 1960).
17. John Embry Parkerson, Jr., United States Compliance with Humanitarian
Law Respecting Civilians During Operation Just Cause, 133 MIL. L. REV. 31, 37
(1991).
18.
INT'L COMM. OF THE RED CROSS, supra note 16, at 23.
19. Parkerson, supra note 17, at 41.
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6LOUISIANA LAW REVIEW
[Vol. 71
not automatic but instead requires determination of whether the
individual meets the requirements of Article 4 of the GPW, which
defines who is entitled to this status.2 0
This two-part equation for determining POW status is often
referred to as the right-type-of-conflict/right-type-of-person test.21
First, the GPW must be triggered by an international armed
conflict, bringing into effect the requirement to assess status
pursuant to Article 4.22 Second, the individual must meet the
qualification requirements established in Article 4.23 If this twopart test is satisfied, the individual is entitled to POW status; if
either part of the test is not satisfied, POW status is inapplicable.2 4
On the night of December 19, 1989, the U.S. launched a largescale highly coordinated land, sea, and air assault against General
Noriega's PDF.25 Designated "Operation Just Cause," the stated
objectives of the assault were to eliminate the threat to U.S.
personnel and the Panama Canal posed by General Noriega's PDF;
to facilitate the assumption of power by Guillermo Endara-the
candidate who, by all accounts, had been legitimately elected to the
office of President-after General Noriega nullified the results of
his election; and to capture General Noriega to bring him to justice
in the U.S. for trial on an indictment alleging violations of the
federal Racketeer Influenced and Corrupt Organizations Act
(RICO).2 6 More than 24,000 U.S. military personnel
simultaneously struck objectives all over Panama. 2 The ensuing
48-72 hours involved intense combat against a PDF that proved
more determined than many U.S. planners had anticipated.2 8
Although the outcome was inevitable, the cost was high for both
sides of the fight, with the U.S. suffering 23 killed in action and the
PDF losing somewhere in the range of 300.29 It is estimated that
20. Geneva III, supra note 15, art. 4.
21. Jonathan G. Odom, Beyond Arm Bands and Arms Banned: Chaplains,
Armed Conflict, and the Law, 49 NAvAL L. REV. 1, 42 (2002).
22. Id.
23. Id.
24. Id.
25. Melissa Healy, Combat in Panama;PanamanianMilitary 'Decapitated'
by CoordinatedUS. Strike, L.A. TIMES, Dec. 21, 1989, at A4.
26. United States v. Noriega, 746 F. Supp. 1506, 1511 (S.D. Fla. 1990),
aff'd, 117 F.3d 1206 (11th Cir. 1997); George H.W. Bush, Presidential Address
to Nation on Panama Invasion (Dec. 20, 1989), available at http://www.
americanrhetoric.com/speeches/ghwbushpanamainvasion.htm.
27. Storer Rowley & Nathaniel Sheppard Jr., Noriega'sForces Keep Battle
Going, CHI. TRIB., Dec. 24, 1989, at Cl.
2 8. Id.
29. Linda Diebel, Panama Unpacifed a Year After Noriega, U.S. Troops
Maintain a Perilous Presence,TORONTO STAR, Dec. 9, 1990, at H1.
2011]
AMERICA'S LONGEST HELD POW
1117
several thousand civilians were also killed or injured in the
fighting. 30
It may come as a surprise to individuals unfamiliar with the
law of war that serious debate even existed over whether General
Noriega qualified for POW status when he was captured.
Objectively, Operation Just Cause looked as much like a war as
had any mission the U.S. had conducted since Vietnam.3 1 For the
U.S. forces engaged in the operation, the nature of the mission
necessitated application of and compliance with the law of war. 32
This was not, however, the result of a determination that the
operation qualified as an international armed conflict, thus
triggering the Geneva Conventions. 33 Instead, U.S. forces applied
the law of war pursuant to a longstanding Department of Defense
policy that required the military to apply the law of war to all
military operations, irrespective of the actual legal characterization
of those operations. 34
Compliance with this policy produced no real controversy until
the U.S. found itself in control of a country without any viable
forces to maintain law and order. In an ironic precursor to the
initial days of the U.S. occupation of Baghdad in 2003 35 almost as
soon as the fighting subsided, lawlessness broke out.'36 The U.S.
Command was suddenly required to determine whether it was an
occupying power pursuant to the law of war. 37 If so, the
30. PHYSICIANS FOR HUMAN RIGHTS, OPERATION JUST CAUSE: THE HUMAN
COST OF MILITARY ACTION IN PANAMA 45 (1991), available at http://physiciansfor
humanrights.org/library/documents/reports/operation-just-cause.pdf; Linda Diebel,
Beyond the Bizarre: NoriegaGoes on Trial, TORONTO STAR, Sept. 4, 1991, at Al.
31. See Adam Isaac Hasson, Note, Extraterritorial Jurisdiction and
Sovereign Immunity on Trial: Noriega, Pinochet, and Milosevic-Trends in
Political Accountability and Transactional Criminal Law, 25 B.C. INT'L &
COMP. L. REV. 125, 131 (2002).
32. United States v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992); see
Parkerson, supra note 17, at 41-42 (applying analysis to determine whether U.S.
invasion of Panama on behalf of Endara government made conflict
"international" for the purposes of GPW).
33. Noriega, 808 F. Supp. at 795.
34. Id; Dep't of Def. Directive 5100.77 (Dec. 9, 1998).
35. See Dexter Filkins, In Baghdad, Free of Hussein, a Day of Mayhem,
N.Y. TIMES, Apr. 12, 2003, at Al.
36. Charlotte Grimes, Noriega's 'Ghost' Haunts Panama; Political
Factions Continue to Battle, ST. LouIs POST-DISPATCH, Mar. 31, 1991, at B4.
37. Interview with W. Hayes Parks, Special Assistant to the Judge Advocate
Gen. of the Army for Law of War Matters, Office of the Judge Advocate Gen.,
U.S. Army, in Rosslyn, Va. (Apr. 23, 1999); see also Geoffrey S. Corn & Michael
L. Smidt, To Be or Not to Be, That Is the Question: Contemporary Military
Operationsand the Status of CapturedPersonnel,ARMY LAW., June 1999, at 1,
availableat http://www.loc.gov/rr/frd/Military_Law/pdf/06-1999.pdf.
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8LOUISIANA LAW REVIEW
[Vol. 71
responsibility to restore and maintain law and order would fall to
U.S. forces. It was, however, clear that asserting the occupation
authority would be perceived as contrary to the established
strategic objective of restoring legitimate authority to the
Panamanians. Instead, invocation of such authority would imply
that the U.S. had resurrected the oft-criticized policy of routine
"Banana Republic" interventions.
As a result of this concern, the executive branch took the
position that Operation Just Cause had not been an international
armed conflict, and as a result the U.S. was not an occupying
power (a legal obligation incurred only in the context of an
international armed conflict).3 9 Instead, the U.S. asserted that it had
been invited to intervene in Panama to assist the legitimately
elected government in ousting a rogue military commander who
had seized power illegally. U.S. forces would continue to comply
with the law of war as a matter of policy where doing so was
operationally logical-for exampe, by treating captured PDF
personnel as if they were POWs. As a matter of law, however,
the U.S. rejected anj obligations flowing from the law of
belligerent occupation.
This conclusion that the intervention in Panama had not
qualified as an international armed conflict became the focal point
the U.S. during the
of contention between General Noriega and42GeeaN
initial stages of his criminal prosecution. General Noriega's
attorneys asserted that their client was entitled to POW status not
as a matter of Department of Defense policy but as a matter of law
by operation of the GPW.4 3 The U.S. responded that it was not
necessary for the court to make this determination, because
pursuant to the policy that it applied during Operation Just Cause,
the U.S. would continue to ensure that General Noriega was treated
consistently with the requirements of the GPW." This response
included formal opinions by both the Department of Justice and the
Department of Defense concluding that Operation Just Cause did
not qualify as an international armed conflict technically triggering
applicability of the GPW because there had never been a genuine
dispute between the United States and Panama.4 5
38.
39.
40.
41.
42.
43.
44.
45.
Parkerson, supra note 17, at 72.
United States v. Noriega, 808 F. Supp. 791, 794-95 (S.D. Fla. 1992).
Id. at 794 n.4.
Id.
Id. at 794.
Id. at 793.
Id. at 794.
Id. at 794 n.4.
2011]
AMERICA'S LONGEST HELD POW
1119
On December 8, 1992, Judge Hoeveler, the Senior District
Judge of the United States District Court for the Southern District
of Florida, issued his opinion on the question of General Noriega's
POW status.4 6 Judge Hoeveler first noted how the government
sought to avoid the issue throughout the case by relying on its
intent to treat him as if he were a POW:
The government has thus far obviated the need for a formal
determination of General Noriega's status. On a number of
occasions as the case developed, counsel for the
government advised that General Noriega was being and
would continue to be afforded all of the benefits of the
Geneva Convention. At no time was it agreed that he was,
in fact, a prisoner of war. 47
This proved unpersuasive to Judge Hoeveler, who then
highlighted the defect in the government's position: it provided no
assurance to General Noriega that he would continue to be treated
in such a manner.4 8 According to Judge Hoeveler, this defect was
precisely why General Noriega was entitled to a legal status
determination:
The government's position provides no assurances that the
government will not at some point in the future decide that
Noriega is not a POW, and therefore not entitled to the
protections of Geneva III. This would seem to be just the
type of situation Geneva III was designed to protect
against. Because of the issues presented in connection with
the General's further confinement and treatment, it seems
appropriate-even necessary-to address the issue of
Defendant's status. 49
Judge Hoeveler then rejected the government's characterization
of the operation in Panama as anything other than an international
armed conflict.50 Relying on the plain language of Article 2 of the
GPW, supported by the International Committee of the Red Cross
Commentary associated with that provision, Judge Hoeveler
concluded that Operation Just Cause did in fact qualify as an
international armed conflict triggering GPW applicability,
"[h]owever the government wishe[d] to label it.""5
46.
47.
48.
49.
50.
51.
Id. at 803.
Id at 794.
Id.
Id.
Id. at 795.
Id.
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0LOUISIANA LAW REVIEW
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By determining Operation Just Cause qualified as the right type
of armed conflict to trigger applicability of the GPW, Judge
Hoeveler was then required to determine whether General Norieg
qualified as the right type of person for purposes of POW status.
Judge Hoeveler had little difficulty resolving this component of the
two-pronged POW qualification requirement, concluding that:
Geneva III's [GPW's] definition of a POW is easily broad
enough to encompass General Noriega. It is not disputed
that he was the head of the PDF, and that he has "fallen into
the power of the enemy." Subsection 3 of Article 4 states
that captured military personnel are POWs even if they
"profess allegiance to a government or an authority not
recognized by the Detaining Power."5 3
General Noriega was therefore a POW not simply as a matter
of policy, but as a matter of law. 54
B. The Impact ofPOW Status on GeneralNoriega'sIncarceration
Unfortunately for General Noriega, the court's determination
that he qualified as a POW did not produce the effect that he hoped
for.55 In earlier pretrial motions, General Noriega asserted that as a
POW, he was immune from trial for the indicted allegations:
Defendants Noriega and Del Cid [an indicted coconspirator and Colonel in the PDF] contend that they are
prisoners of war ("POW") within the meaning of the
Geneva Convention Relative to the Treatment of Prisoners
of War, (Geneva III), a status, Defendants maintain, which
divests this Court of jurisdiction to proceed with this case. 56
In response to this assertion, the court proceeded on the
assumption that Noriega was in fact a POW (although, at that point
in the litigation, the court determined that it was unnecessary to
resolve that issue based on this assumption)." The court then
addressed the most critical question related to the intersection of
criminal prosecution and POW status: Did that status prohibit a
52. Id.
53. Id.
54. Id.
55. United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990),
aff'd, 117 F.3d 1206 (11th Cir. 1997).
56. Id. at 1525 (footnote omitted).
57. Id.
2011]
AMERICA'S LONGEST HELD POW
1121
detaining power (the U.S.) from prosecuting a POW for criminal
offenses in violation of its domestic law?58
This question implicated a law of war concept that provides
qualified immunity from criminal prosecution to lawful
combatants. 59 According to this concept, it is generally true that
POWs are immune from prosecution by a detaining power. 60 This
is one of the most important rights afforded POWs and is
commonly referred to as "combatant immunity." 6 1 However,
combatant immunity is not absolute; instead, it extends only to precapture conduct related to the armed conflict that is consistent with
the law of war. 62 Accordingly, two types of offenses fall outside
the scope of combatant immunity: (1) violations of the laws and
customs of war (war crimes) committed within the context of an
armed conflict, and (2) violations of other criminal prohibitions
unrelated to the armed conflict in which the POW participated.
Resolving the challenge to jurisdiction raised by General
Noriega-that his POW-based combatant immunity barred the
U.S. from asserting its jurisdiction to criminally prosecute him for
his pre-conflict violations of U.S. domestic law-necessitated
analysis of these distinctions and the limitations of combatant
immunity.6 General Noriega asserted what was in effect an
58. Id. at 1526.
59. See YORAM
DINsTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW
OF INTERNATIONAL ARMED CONFLICT 33-39 (2d ed. 2010); see also United
States v. Lindh, 212 F. Supp. 2d 541, 557 n.35 (E.D. Va. 2002). Concluding that
John Walker Lindh was not a lawful combatant, the Lindh court stated that
[b]elligerent acts committed in armed conflict by enemy members of
the armed forces may be punished as crimes under a belligerent's
municipal law only to the extent that they violate international
humanitarian law or are unrelated to the armed conflict. . . .
[C]ombatants "may not be sentenced ... to any penalties except those
provided for in respect of members of the armed forces of the said
Power who have committed the same acts."
Lindh, 212 F. Supp. 2d at 553 (quoting Geneva III, supra note 15, art. 87); see
also Geneva III, supra note 15, art. 82 ("A prisoner of war shall be subject to the
laws, regulations and orders in force in the armed forces of the Detaining Power;
the Detaining Power shall be justified in taking judicial or disciplinary measures
in respect of any offence committed by a prisoner of war against such laws,
regulations or orders. However, no proceedings or punishments contrary to the
provisions of this Chapter shall be allowed.").
60. Joseph P. Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees,
Unlawful Belligerency, and the InternationalLaws ofArmed Conflict, 55 A.F. L.
REV. 1, 9-10 (2004).
61. Idat9n.l1.
62. Id. at 9.
63. Id. at 10.
64. United States v. Noriega, 746 F. Supp. 1506, 1525-29 (S.D. Fla. 1990),
af'd, 117 F.3d 1206 (11th Cir. 1997).
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2LOUISIANA LAW REVIEW
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unlimited concept of combatant immunity, an assertion that did not
withstand judicial scrutiny.6 5 Although it was true that as a POW
General Noriega was immune from criminal sanction derived from
in
his lawful conduct as a combatant during the armed conflict
66
Panama, this was not the nature of the indicted offenses. Instead,
the indictment alleged numerous violations of the U.S. criminal
code that occurred well before December 19, 1989-the date the
armed conflict began.6 7
Relying on Article 84 of the GPW," the Federal District Court
concluded that because members of the U.S. armed forces could
have been tried for the same offenses alleged against General
Noriega, his immunity as a POW did not shield him from criminal
jurisdiction.69 This ruling was consistent not only with the GPW
but also with the underlying customary principle of combatant
immunity reflected in Article 84.70 This ruling and General
Noriega's subsequent prosecution for his pre-capture violations of
U.S. law illuminate the purpose and limitations of combatant
immunity. That immunity was never intended to be absolute or to
absolve a POW from criminal responsibility for any pre-capture
criminal misconduct. Instead, it was and remains a protection
derived from the logic that engaging in armed hostilities as an
agent of the state is an obligation, and therefore, so long as the
individual complies with the international laws and customs of war
that dictate permissible conduct during armed hostilities there
should be no adverse criminal consequence that results. This also
reflects the reciprocal foundation of the principle, which accords
this protection to all participants in armed hostilities, on the
condition precedent that their participation is pursuant to state
authority (right type of conflict) and that they meet the
requirements established by international law to lawfully
participate in the hostilities (right type of person).
There is simply no link between this underlying rationale and
the type of unqualified immunity General Noriega asserted.
Extending combatant immunity to pre-capture conduct unrelated to
65. Id. at 1529.
66. Id. at 1510.
67. Id.
68. Geneva III, supra note 15, art. 84 ("A prisoner of war shall be tried only
by a military court, unless the existing laws of the Detaining Power expressly
permit the civil courts to try a member of the armed forces of the Detaining
Power in respect of the particular offence alleged to have been committed by the
prisoner of war.").
69. Noriega, 746 F. Supp. at 1525-26.
70. Id. at 1526; see also INT'L COMM. OF THE RED CROSS, supra note 16, at
412.
2011]
AMERICA'S LONGEST HELD POW
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the armed conflict would disconnect its tether to the law of war and
vest potential criminals with an unjustified windfall. Indeed, such
an extension might even produce the perverse result of
encouraging such individuals to participate in hostilities in order to
obtain the cleansing effect of unqualified immunity. Perhaps more
importantly, understanding the established qualifications of
combatant immunity reveals that there is no fundamental
incompatibility between POW status and the ability of a state to
sanction genuine criminal misconduct. Whether because the
individual fails to qualify for POW status, or the alleged
misconduct is unrelated to the armed conflict, or the alleged
misconduct violates the laws and customs of war (for example, if
General Noriega had ordered the assassination of U.S. POWs), the
concept provides ample flexibility for the state to sanction
misconduct. Only in those limited situations where the state would
expect its own armed forces to be protected from post-capture
criminal prosecution does the concept limit the prerogative of the
state. General Noriega stands as a reminder, therefore, that the
GPW and the law of war it implements reflect a logical balance
between the needs of state protection and the dictates of humanity.
II. EXTRATERRITORIAL JURISDICTION
A major hurdle for the government to overcome in prosecuting
General Noriega in a U.S. court was the establishment of
jurisdiction over acts that were committed in Panama. It is
axiomatic that in order for the government to prosecute any
criminal defendant, it must first establish jurisdiction.7 ' This
becomes a challenge for the government in cases involving
international criminal acts. Extraterritorial jurisdiction is necessary
for the government to impose criminal sanctions for these acts, yet
domestic and international legal restrictions prevent the U.S. from
assertingjurisdiction over all criminal acts that occur outside of its
borders. Criminal defendants charged with committing crimes
outside of U.S. territory may challenge their prosecution on the
basis that the country cannot properly assert jurisdiction over the
conduct. Thus, the government must overcome these legal
71. Anthony J. Colangelo, Constitutional Limits on Extraterritorial
Jurisdiction: Terrorism and the Intersection of National and InternationalLaw,
48 HARV. INT'L L.J. 121, 126 (2007).
72. Id. at 127-28.
73. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES §§ 401-03 (1987); see also CHARLES DOYLE, CONG. RESEARCH
SERV., 94-166, EXTRATERRrrORIAL APPLICATION OF AMERICAN CRIMINAL LAW
(2010), availableat http://www.fas.org/sgp/crs/misc/94-166.pdf.
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4LOUISIANA LAW REVIEW
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hurdles in any case in which a defendant is being criminally
charged for a crime committed in a foreign land.
The legal restrictions placed upon a country's ability to assert
jurisdiction over crimes that occur outside its territory have deep
historical roots. Premised on the idea of state sovereignty and
comity, countries historically left the prosecution of crimes
occurring outside their borders to the states in whose territory the
crimes occurred.74 Not wanting other states to interfere with the
enforcement of laws within its own borders, a country would thus
defer to the prosecution of crimes that occurred outside its
territory. This desire to discourage interference with state
sovereignty and to protect interests of comity led to restrictions on
the exercise of extraterritorial jurisdiction rooted in both domestic
and international law.75
In addition to addressing concerns about foreign relations,
limits on extraterritorial jurisdiction remedied some practical
problems posed by the prosecution of criminal acts occurring
outside of the prosecuting country's territory. The laws of
individual countries are not identical, and one state may
criminalize conduct that is not the subject of criminal sanctions
elsewhere. Unlimited state authority to assert jurisdiction beyond
its borders might lead to the prosecution for acts or omissions
committed in a country that had not criminally prohibited such
conduct. In order to provide both notice to individuals about the
laws that govern their behavior as well as consistency in
prosecution, international and domestic law impose restrictions on
the exercise of extraterritorial jurisdiction. 76
Thus, there are strong political and practical reasons for
limiting a state's exercise of extraterritorial jurisdiction. In the
U.S., a two-step process is used to determine the popriety of
extending criminal jurisdiction beyond U.S. territory. First, the
court will examine international law to determine whether the
assertion of extraterritorial jurisdiction is appropriate. Second,
even if the assertion of jurisdiction is permitted by international
law, jurisdiction will not exist unless the domestic law establishing
the criminal prohibition was intended by Congress to apply
extraterritorially.79 Therefore, the prosecution for extraterritorial
74.
75.
76.
process
77.
78.
79.
Colangelo, supranote 71, at 127-28.
See generally DOYLE, supra note 73.
See Colangelo, supra note 71, at 165-66 (noting some of the due
concerns with the application of extraterritorial jurisdiction).
Noriega, 746 F. Supp. at 1512.
Id.
Id.
2011]
AMERICA'S LONGEST HELD POW
1125
crime will only proceed if both customary international law and the
laws of the U.S. authorize the exercise ofjurisdiction.
When the U.S. brought General Noriega before the Federal
District Court in Miami to stand trial on an indictment that
predated the invasion and his capture, General Noriega directA
challenged the court's jurisdiction over the indicted offenses.
Specifically, the indictment contained charges of racketeering
under the RICO statutes;81 conspiracy to manufacture cocaine,
with the intent to import it into the U.S.; conspiracy to import and
distribute cocaine into the U.S.; distributing and aiding and
abetting the distribution and manufacture of cocaine, intending that
it be imported and distributed in the U.S.; and using interstate
travel to promote an unlawful activity.82 General Noriega
challenged the court's jurisdiction over acts committed outside the
borders of the U.S. by the leader of a sovereign nation." His
challenge accordingly implicated both limits on extraterritorial
criminal jurisdiction and immunity for foreign heads of state. After
noting that the question of immunity from prosecution was distinct
from the issue of jurisdiction, the Federal District Court examined
whether jurisdiction was appropriate under international and
domestic laws. 84
The court's ruling on General Noriega's motion to dismiss
began by citing international law principles regulating the exercise
of state jurisdiction. Customary international law permits the
exercise of jurisdiction over acts under several theories. The most
common basis for jurisdiction is territorial: a state has jurisdiction
over events that occur within its territory. For events occurring
outside the territory of the nation, international law permits
jurisdiction based upon five distinct theories. 86 The first and
perhaps most commonly utilized basis for extraterritorial
80. Id
81. 18 U.S.C. §§ 1961-1968 (2006 & Supp. 2009). Congress enacted RICO
to respond to a growing concern over the influence of organized crime on
commercial enterprises in the U.S. Since its enactment, the government has
greatly expanded its use of RICO to apply to enterprises other than those
involving organized crime. See Salinas v. United States, 522 U.S. 52 (1997).
Specifically, RICO criminalizes acquiring or operating an enterprise through a
pattern of racketeering activity affecting interstate or foreign commerce.
82. Noriega, 746 F. Supp. at 1510.
83. Id. at 1512.
84. Id.
85. Colangelo,supra note 71, at 127-28.
86. Christopher L. Blakesley & Dan E. Stigall, The Myopia of U.S. v.
Martinelli: ExtraterritorialJurisdiction in the 21st Century, 39 GEO. WASH.
INT'L L. REv. 1, 13 (2007).
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6LOUISIANA LAW REVIEW
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jurisdiction is nationality." A country has jurisdiction over acts
committed by its own citizens, even if those acts occurred outside
the territorial limits of the nation.88 Second, a state may assert
jurisdiction over extraterritorial acts when those acts obstruct the
function of the government or threaten the security of the state
under the protective principle ofjurisdiction. 89 When the state must
prosecute an individual to protect the state's own interests-such
as the prosecution of a spy who committed acts against the state
abroad-international law permits jurisdiction. Third, a country
may also assert extraterritorial jurisdiction under the theory of
passive personality. 90 When a defendant commits acts that harm a
state's citizens abroad, principles of international law allow for
jurisdiction over that defendant. 9 1 Fourth, the universality principle
allows for any state to prosecute criminal acts that are so heinous
as to be universally condemned and therefore every member of the
community of nations has an equal right to prosecute.92 Thus,
under international legal principles, any state can exercise
jurisdiction over an individual who commits crimes against
humanity, genocide, war crimes, piracy, or other offenses falling
within the category of universal jurisdiction regardless of where
those crimes occurred, the nationality of the actor, or the
nationality of the victim. 9 3 Fifth, under the objective territorial
theory of jurisdiction, a state has jurisdiction over acts that occur
overseas but are intended to have a substantive effect within the
territory of the state. 94 Although limited in scope, these five
theories of jurisdiction essentially allow for a country to enact law
asserting jurisdiction over extraterritorial acts when those acts
impact the country in some significant way.
It was under the objective territoriality theory that the court in
the Noriega case determined that extraterritorial jurisdiction was
appropriate. 95 Noting that the criminal conduct ascribed to General
Noriega occurred in Panama and Cuba, the Federal District Court
nonetheless found that the conduct 9roduced or was intended to
produce effects in the United States. The court explained that the
87. Id. at 18-21.
88. Id.
89. Id. at 22-25.
90. Id. at 25-28.
91. Id.
92. Id. at 28-29.
93. Id.
94. Id. at 14-16.
95. United States v. Noriega, 746 F. Supp. 1506, 1513-14 (S.D. Fla. 1990),
affd, 117 F.3d 1206 (11th Cir. 1997).
96. Id.
2011]
AMERICA'S LONGEST HELD POW
1127
objective territorial theory allows for jurisdiction under several
circumstances. First, a state has jurisdiction over any defendant
whose conduct produces actual effects within the territory of that
state. 97 Second, a state has jurisdiction over any defendant who is
part of a conspiracy and whose co-conspirators participated in
conduct within the state that furthered the conspiracy. 98 Finally, the
court noted a recent trend in international jurisprudence that
extended the objective territorial theory to conduct that may not
have produced effects within a state but was intended to produce
effects within that state. 99 Citing the Restatement (Third) of
Foreign Relations Law, the court noted that under this final
circumstance, no proof of an effect or overt act within the territory
of the country is necessary.'o
When the intent to commit the proscribed act is clear and
demonstrated by some activity, and the effect to be
produced by the activity is substantial and foreseeable, the
fact that a plan or conspiracy was thwarted does not deprive
the target state ofjurisdiction to make its law applicable. 0 1
The court noted that in drug smuggling cases, courts often look to
the mere intent of the defendant to import drugs into the U.S. to
determine whether jurisdiction exists.102 Specifically in this
context, courts have found it unnecessary for repercussions to be
felt within the U.S. in order to find such intent.1 03
The court examined the allegations against General Noriega
and found that actions both within and outside the U.S. created
jurisdiction under all aspects of the objective territoriality
theory.104 The court noted that overt acts occurred within the U.S.
in furtherance of the conspiracy for which General Noriega was
charged. 05 The court also explained that the indictment alleged
that General Noriega's actions in Panama led to more than 2,000
pounds of cocaine being imported into the U.S., clearly satisfying
the effects test.106 Finally, the court reasoned that even if these acts
had not produced any effect within the U.S., the indictment alleged
97.
98.
99.
100.
101.
Id. at 1513.
Id.
Id.
Id.
Id. (quoting
102.
10 3.
104.
105.
106.
Id.
Id.
Id. at 1513-14.
Id.
Id. at 1514.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW
OF THE UNITED STATES § 402 cmt. D (1987)).
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8LOUISIANA LA W RE VIEW
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that the intent of the conspiracy was to import cocaine into the
U.S., therefore satisfying the objective territoriality test. 0 7
General Noriega, also relying on the Restatement, argued that
the exercise of extraterritorial criminal jurisdiction is permissible
"only upon a stron justification" and that no such justification
existed in his case.' The court, however, held differently, finding
that the Restatement specifically addressed narcotics offenses as
being a strong justification for the exercise of such jurisdiction.' 09
The court further explained the particular interest of the U.S. in
exercising jurisdiction under these circumstances, noting the
growing drug epidemic in the U.S., and found that the U.S. has a
strong duty to curb the importation of drugs within its borders." 0
Thus, the court rejected General Noriega's claims that extending
U.S. federal criminal statutes to reach his extraterritorial
conspiracy was inherently unreasonable."'
Having determined that international law permitted the
exercise of criminal jurisdiction over General Noriega, the court
then examined the domestic criminal statutes under which he was
indicted. 112 The court quickly found that all charges relating to the
importation of drugs were, by their very nature, intended to appil
to acts that occurred outside of the territory of the United States.
Although the court noted that only one of the narcotics statutes
expressly authorized extraterritorial jurisdiction, it nonetheless
inferred that the other narcotics statutes also applied to conduct
which commenced abroad, finding that the statutes would be
rendered meaningless without such a conclusion.' 14
The court devoted the most time to dissecting the RICO statute
to determine congressional intent.11 5 Noting that this was an issue
of first impression, the court examined the legislative history
behind RICO and found that Congress intended the statute to be
extraordinarily broad in application." 6 The court discussed the
purpose of RICO: to contribute to an unprecedented attack on
organized crime "on all available fronts."'' 7 Based upon this
history, and without any express congressional discussion of the
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
Id.
Id.
Id. at 1514-15.
Id.
Id. at 1515.
Id.
Id.
Id. at 1515-16.
Id. at 1516-17.
Id.
Id. at 1517.
2011]
AMERICA'S LONGEST HELD POW
1129
extraterritorial application of RICO, the court found that "Congress
was concerned with the effects and not the locus of racketeering
activities" and therefore concluded RICO applies to conduct
intended to produce effects within the U.S."' In a similar analysis
the court also found that crimes alleged under the Travel Act'
reached criminal conduct occurring outside of the U.S.120 Thus,
under both international and domestic law, the court found that
jurisdiction was authorized and appropriate for acts occurring
outside of the U.S.
The expansion of jurisdiction beyond pure territorial theories
has far-reaching consequences but also provides the government
with a powerful and important weapon in its arsenal to battle
transnational threats to the nation. The reasoning used by the
Federal District Court applies to a host of cases involving criminal
acts overseas. Specifically, the same reasoning used by the court is
used to establish jurisdiction in cases involving detainees accused
of terrorist activities. And the same rationale used by the court to
establish jurisdiction over General Noriega is asserted as providing
a basis for jurisdiction in international terrorism cases.
At the same time, Congress has not left it entirely in the hands
of the courts to determine whether a statute has extraterritorial
applicability. In response to the events of September 11 and the
growing concern over terrorist threats, Congress has specifically
addressed jurisdictional limitations on the prosecution of terrorists.
In particular, the government has enhanced its ability to extend
jurisdiction to terrorist acts committed overseas through
amendments to the material support for terrorism statute. 21In
application, the material support statute criminalizes a broad range
of conduct that would previously have been prosecuted under the
RICO statute. However, as initially enacted, the extraterritorial
applicability of the statute was, at the very least, unclear.122
Recognizing the jurisdictional issues that RICO presented to the
courts, Congress amended the material support statute to extend to
118. Id.
119. 18 U.S.C. § 1952 (2006). The Travel Act criminalizes conduct that
involves the use of interstate commerce to further racketeering activities.
120. Noriega, 746 F. Supp. at 1518.
121. 18 U.S.C. §§ 2339A-2339C (2006 & Supp. 2009).
122. Alexander J. Urbelis, Rethinking ExtraterritorialProsecution in the
War on Terror: Examining the Unintentionalyet Foreseeable Consequences of
ExtraterritoriallyCriminalizingthe Provision of MaterialSupport to Terrorists
and Foreign Terrorist Organizations,22 CONN. J. INT'L L. 313, 315-17 (2007)
(noting that "[p]rior to the Patriot Act, section 2339A did not apply
extraterritorially" and that section 2339B contained language that cast doubt on
its extraterritorial applicability).
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0LOUISIANA LAW REVIEW
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extraterritorial acts.' 23 Thus, as the prosecution of criminal acts has
extended more and more to conduct occurring overseas, both the
courts and the legislature have struggled to find a jurisdictional
basis upon which to punish the conduct. Although these
jurisdictional issues have garnered great attention as they relate to
the prosecution of terrorist suspects, the issues presented in current
cases are the very issues that courts struggled with in the Noriega
case. General Noriega's prosecution serves as a prime example of
the long reach of U.S. law to criminal acts occurring overseas in a
variety of contexts.
III. INTERNATIONAL ABDUCTION AND DUE PROCESS
General Noriega did not confine his attack on U.S. jurisdiction
to asserting his POW status. In an alternate attack, he invoked the
Due Process Clause of the Fifth Amendment of the U.S.
Constitution. General Noriega raised several due process claims,
all of which shared the underlying assertion that his treatment at
the hands of the U.S. government was so outrageous that it
justified barring the government from prosecuting him. More
specifically, he argued that his due process rights were violated by
the manner of his capture, arrest, and presentation in the U.S. for
trial.124
The Ker-Frisbie doctrine is a long-settled rule from two
United States Supreme Court cases, Ker v. Illinois125 and Frisbiev.
Collins,126 that allows the exercise of domestic criminal
jurisdiction over a defendant irrespective of the methods utilized
by the 2overnment to bring the defendant into the jurisdiction of a
court.' More specifically, the Ker-Frisbiedoctrine stands for the
12 3. Id.
124. United States v. Noriega, 117 F.3d 1206, 1213-14 (11th Cir. 1997) ("In
his pre-trial motion, Noriega also sought the dismissal of the indictment against
him on the ground that the manner in which he was brought before the district
court (i.e., through a military invasion) was so unconscionable as to constitute a
violation of substantive due process. Noriega also argued that to the extent the
government's actions did not shock the judicial conscience sufficiently to trigger
due process sanctions, the district court should exercise its supervisory power to
decline jurisdiction. The district court rejected Noriega's due process argument,
and it declared Noriega's alternative supervisory power rationale nonjusticiable.").
125. 119 U.S. 436 (1886).
126. 342 U.S. 519 (1952).
127. United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990),
affd, 117 F.3d 1206 (11th Cir. 1997). In its broadest reading, Ker-Frisbie
ultimately stands for the concept of male captus, bene detentus: wrongly
captured, rightly detained. The U.S. is not alone in upholding jurisdiction over
2011]
AMERICA'S LONGEST HELD POW
1131
proposition that the forcible abduction of a defendant for purposes
of bringing him to justice in the U.S. does not justify the remedy of
dismissal on the basis of predicate government illegality.128
Pursuant to these precedents, such a defendant is afforded due
process so long as the defendant is present in court after having
been informed of the charges against him and afforded a fair
trial.12 9 The Court in Frisbie even proclaimed that there was
"nothing in the Constitution that requires a court to permit a guilty
person rightfully convicted to escape justice because he was
brought to trial against his will." 30 Clearly, forced abduction was
no bar to jurisdiction under the long-standing rule.131
The Ker-Frisbie doctrine would appear to foreclose any due
process challenge to the exercise of jurisdiction by General
Noriega. However, General Noriega invoked a rarely used
exception to the doctrine, arguing that the use of a military
invasion to capture him "shocked the conscience," thereby
rebutting the Ker-Frisbie presumption and requiring the Federal
District Court to prohibit his prosecution as a means of punishing
the U.S. for its actions.' 32 Known as the Toscanino exception, this
rule emerged as the Supreme Court expanded its interpretation of
due process to include substantially more protections for a criminal
defendant than merely the right to fair procedure under Frisbie.133
This broadened conception of due process empowered the
judiciary to act to prevent the government from using illegal and
morally questionable tactics to gain the upper hand in the
specifically
international
of justice-more
dispensation
kidnapping. 134
In very real sense, the Toscanino exception to the Ker-Frisbie
doctrine is the international abduction analogue to the exclusionary
rule. Both rules operate as "judicially-created device[s] designed to
abducted defendants, as Great Britain, Israel, and France each applied the
concept in the latter half of the twentieth century. Jeffrey J. Carlisle, Extradition
of Government Agents as a Municipal Law Remedy for State-Sponsored
Kidnapping, 81 CALIF. L. REV. 1541, 1554 (1993).
128. Noriega, 746 F. Supp. at 1529. But see United States v. Rauscher, 119
U.S. 407 (1886); United States v. Verdugo-Urquidez, 939 F.2d 1341, 1348 (9th
Cir. 1991) (stating that under certain specifically drafted extradition treaties, a
court may be required to forfeit jurisdiction over a defendant as to all crimes but
those for which the defendant was extradited).
129. Frisbie,342 U.S. at 522.
130. Id. at 522.
131. Id.
132. Noriega, 746 F. Supp. at 1511-12.
133. United States v. Toscanino, 500 F.2d 267, 272 (2d Cir. 1974).
134. Id.
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2LOUISIANA LAW REVIEW
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deter disregard for constitutional prohibitions and give substance to
constitutional rights." 35 For example, if the government were to
use police brutality to coerce a confession or carry out an
unconstitutional search and seizure to obtain evidence, then
pursuant to the exclusionary rule, the court has a duty to deny the
government the fruits of its illegal activity.36 In such cases, the
fruit would be the coerced confession or the unconstitutionally
seized evidence.13 7 The concept of exclusion as a remedy to
government illegality is premised on the Supreme Court's
determination that absent the threat of exclusion, the law creates no
incentive for the government agents to respect fundamental
principles of law in their efforts to investigate and convict criminal
misconduct. Exclusion, therefore, was a tool created by the
judiciary to ensure due process.' 3 8
This policy of exclusion was in sharp contrast with the KerFrisbie doctrine, which essentially gave the government carte
blanche to engage in questionable tactics to capture suspects
outside the country and bring them before the courts for trial and
punishment.13 9 Although the exclusionary rule was never
conceived as a tool to deter such government conduct by
foreclosing prosecution altogether, the principle of exclusion was
and still is a highly valued procedural due process remedy.140 As
the international war on drug trafficking increased in the 1980s, it
was only a matter of time before the Court would reconsider KerFrisbie. 1
This reconsideration began in the federal circuit courts, where
criticism of the Ker-Frisbie doctrine became increasingly
common.14 2 In the seminal Toscanino decision, the defendant
claimed that his arrest had been procured unlawfully by agents of
the United States who subjected him to extensive and continuous
torture, including pinching his fingers with metal pliers, flushing
alcohol into his eyes and nose, forcing other fluids up his anal
passage, and attaching electrodes to his extremities and genitals.143
Rather than condemn the cruel treatment of the defendant as a
135.
136.
United
137.
138.
139.
140.
141.
TIMES,
142.
143.
Id. at 273-74.
Id. at 275; see also Mapp v. Ohio, 367 U.S. 643 (1961); Silverthome v.
States, 251 U.S. 385 (1920).
Toscanino, 500 F.2d at 275.
United States v. Calandra, 414 U.S. 338, 348 (1974).
United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir. 1974).
United States v. Blue, 384 U.S. 251, 255 (1966).
Jim Schachter, Arrests Abroad; Long Arrn of Law Bends the Rules, L.A.
July 17, 1986, at 1.
Toscanino, 500 F.2d at 272-73.
Id. at 270.
2011]
AMERICA'S LONGEST HELD POW
1133
deprivation of his due process rights, the United States Court of
Appeals for the Second Circuit instead focused its criticism on the
government's "exploitation of any deliberate and unnecessary
lawlessness" as a violation of the Fourth Amendment.'"
Relying on cases focusing on interpretations of the
exclusionary rule, the Toscanino court determined that due process
now required a court to divest itself of jurisdiction over a
defendant if the government's conduct regarding his apprehension
was sufficiently wrongful.14 5 First, the court considered Rochin v.
46 a U.S. Supreme Court case decided the same term as
California,1
47
Frisbie.1 In Rochin, the Supreme Court reversed a narcotics
conviction after the defendant argued his due process rights were
violated when the government forcibly pumped his stomach to
induce vomiting and retrieve the evidence used to prosecute
him. 148 The Court found that:
Due process of law, as a historic and generative principle,
precludes defining, and thereby confining, these standards
of conduct more precisely than to say that convictions
cannot be brought about by methods that offend "a sense of
justice.". . . It would be a stultification of the responsibility
which the course of constitutional history has cast upon this
Court to hold that in order to convict a man the police
cannot extract by force what is in his mind but can extract
what is in his stomach.149
The techniques used in Rochin were examples of "conduct that
shocks the conscience" and were "bound to offend even hardened
sensibilities."' 5 0 The Court refused to affirm the conviction, because
in doing so it would also affirm the brutality used to obtain it.' '
The Toscanino court also considered exclusionary-rule
principles found in Weeks v. United States' 52 -principles later
applied to the states in Mapp v. Ohio' 5 3-where the Supreme Court
decided criminal prosecution must be sacrificed in order to uphold
due process and deter government misconduct.154 The court saw
144.
145.
Id.at 275.
Id. at 273-75.
146.
342 U.S. 165, 166--67 (1952).
147.
Toscanino, 500 F.2d at 273.
148. Rochin, 342 U.S at 166-67.
149. Id. at 173.
150.
151.
Id. at 172.
Id. at 173-74.
152. 232 U.S. 383 (1914).
153. 367 U.S. 643 (1961).
154.
United States v. Toscanino, 500 F.2d 267, 274 (2d Cir. 1974).
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the exclusionary rule as a tool of the courts created to discourage
the states and the government from violatin defendants'
constitutional rights simply to ensure a conviction.
The Toscanino court had to make a decision.156
Faced with a conflict between the two concepts of due
process, the one being the restricted version found in KerFrisbie and the other the expanded and enlightened
interpretation expressed in more recent decisions of the
Supreme Court, we are persuaded that to the extent that the
two are in conflict, the Ker-Frisbieversion must yield. 57
The court held it was required to give up jurisdiction in light of
deliberate and unreasonable violations of a defendant's
constitutional rights.' 58 In the court's view, this new kind of
exclusionary rule represented no more than an extension of the
power of the federal civil courts to decline jurisdiction over
defendants whose presence was obtained unconstitutionally.159
No less than 10 months after deciding Toscanino, the Second
Circuit swiftly narrowed its new exclusionary rule by calling it a
mere "exception" in United States ex rel. Lujan v. Gengler.16 0
There, the defendant, a pilot, was tricked into flying a man hired
by American agents from Argentina to Bolivia, where he was
subsequently taken into custody by Bolivian police and forbidden
communication with his embassy, attorney, or family.161 A week
after he was first detained by the Bolivians, the defendant arrived
at Kennedy Airport in New York City and was arrested by federal
agents.162 Neither Argentina nor Bolivia charged the defendant, nor
did either country protest his abduction.' 63 Unlike the brutal acts
alleged in Toscanino, the capture in Lujan was, at worst,
"unconventional," "sim p illegal," but "lacking . . . shocking
governmental conduct.
The court made it clear that Toscanino was simply an
exception to Ker-Frisbie,not the rule.' 65 "In holding that Ker and
Frisbie must yield to the extent they were inconsistent with the
155. Id at 274-75.
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
Id. at 275.
Id.
Id
Id.
510 F.2d 62, 65 (2d Cir. 1974).
Id. at 63.
Id.
Id
Id at 63, 66.
Id. at 65.
2011]
AMERICA'S LONGEST HELD POW
1135
Supreme Court's more recent pronouncements, we scarcely could
have meant to eviscerate the Ker-Frisbierule, which the Supreme
Court has never felt impelled to disavow." 6 6 The Second Circuit
made clear in Lujan what it barreled past in Toscanino: KerFrisbie is still valid, and not every illegal capture or forcible
abduction will deprive a court of jurisdiction over a defendant.,67
Simply alleging that there was an international abduction or that
there was anything illegal about the process of bringing a
defendant into a court's iurisdiction is insufficient to establish a
due process violation.16 Indeed, the court "did not intend to
suggest that any irregularity in the circumstances of a defendant's
arrival in the jurisdiction would vitiate the proceedings of the
criminal court."' 69 Instead, to effectively invoke what the court
now labeled the exception to Ker-Frisbie, the methods of
obtaining the defendant's presence in the court's jurisdiction must
"shock the conscience," "offend a sense of justice," or be "cruel,
inhuman and outrageous." 1 70
Drawing heavily from the language used by the Second Circuit,
General Noriega sought the remedy of dismissal, basing his due
process claim on the facts and circumstances related to Operation
Just Cause. General Noriega attempted to convince the court that
the military invasion of Panama was conducted for one clear and
inescapable purpose: to bring him to justice. Furthermore, he
emphasized the widespread loss of life and destruction caused by
the operation.171 General Noriega acknowledged the normal
application of Ker-Frisbie to individuals brought before U.S.
courts following international abduction, but he argued that the use
of more than 25,000 military personnel in a full-scale invasion of a
sovereign country conducted in order to secure his arrest and
presence for trial provided a clear example of conscience shocking
government conduct, therefore triggering the Toscanino exception.
This presented the Federal District Court with another issue of first
impression: Did the military invasion of Panama an invasion
launched in part to bring General Noriega to justice, 72 require the
court to deny the government the opportunity to try General
166. Id
167. Id
168. Id at 67.
169. Id at 65.
170. Id
171. United States v. Noriega, 746 F. Supp. 1506, 1530 (S.D. Fla. 1990),
af'id, 117 F.3d 1206 (llth Cir. 1997).
172. Bush, supra note 26.
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6LOUISIANA LAW REVIEW
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Noriega because the methods it employed shocked the
conscience?17 3
Regardless of Judge Hoeveler's opinion on the legitimacy of
the invasion of Panama, the challenged status of Ker-Frisbie,or
the Lujan reinterpretation of the Toscanino exception, he found
General Noriega's argument to be without merit for a different
reason altogether.174 General Noriega's due process argument was
dismissed because he had not alleged a government violation of his
individual rights.' 75 He was not mistreated, nor did he suffer any
kind of physical abuse comparable to Toscanino.1 Instead, the
judge noted that General Noriega's asserted due process violation
focused on what he alleged to be the unnecessary death and injury
to Panamanian citizens and the destruction of their property as the
result of the U.S. invasion. 177 The court concluded General
Noriega could not assert third party allegations of due process
violations.Y' No Panamanian, except for General Noriega himself,
had any stake in having his indictment dismissed.179 Not having
asserted any personal violation of due process, General Noriega's
presence in the Federal District Court fell within the Ker-Frisbie
rule.' 80
The court's reliance on third party standing obviously skirted
the core question of whether the use of military interventions to
apprehend fugitives shocks the conscience. However, it also
reinforced the extremely narrow nature of the Toscanino exception
to the Ker-Frisbie doctrine. General Noriega's efforts to obtain
Supreme Court review ultimately failed, 18 ' suggesting that at least
at that time the Court had little interest in revisiting Ker-Frisbie.
One unavoidable lesson from the litigation is that absent physical
abuse, Toscanino provides little in the way of a constraint on
government action. This is of course not insignificant. In an era of
secret detentions and waterboarding, imposing a penalty on the
government for physically abusing detainees subsequently brought
to trial in federal courts could prove an effective deterrent to such
government conduct. But one must wonder: How, if ever, could
173. Noriega, 746 F. Supp. at 1530.
174. Id. at 1531.
175. Id.
176. Id
177. Id
178. Id. at 1532.
179. Id
180. Id.
181. Noriega v. Pastrana, 130 S. Ct. 1002 (2010) (denying certiorari). Justice
Thomas authored a dissent, to which Justice Scalia joined. Id. at 1002 (Thomas,
J., dissenting).
2011]
AMERICA'S LONGEST HELD POW
1137
the use of the armed forces to apprehend an international fugitive
trigger Toscanino when the invasion of a country did not? Male
captus, bene detentus appears alive and well in U.S. due process
jurisprudence, allowing extraordinary means to bring individuals
before U.S. courts to answer for their criminal actions.
IV. EXTRADITION
AND HABEAS REVIEW
Following his prosecution in the Federal District Court,
General Noriega was convicted of drug trafficking offenses and
ultimately sentenced to 30 years imprisonment (later reduced by 10
years based on the court's conclusion that other co-conspirators
received substantially more lenient sentences).182 General
Noriega's designation as a POW required that the GPW govern the
conditions of his custody while he was held in the U.S.183 As a
result, he was held in a private cell in the Federal Correctional
Facility in Miami, received annual visits by the International
Committee of the Red Cross, received other benefits such as care
packages and private recreation time, and was permitted to retain
his uniform and military insignia and badges. However, his status
as a POW in no way limited the authority of the U.S. to subject
him to punitive confinement after hostilities terminated.
General Noriega became eligible for parole in September
2007.184 However, the U.S. was not the only country interested in
prosecuting General Noriega for criminal activity committed
during his reign as Chief of the PDF and de facto Panamanian head
of state. During General Noriega's incarceration, the French
government tried and convicted him in absentia for money
laundering offenses in France.1s As a result, shortly before his
scheduled release on parole, the French government requested the
extradition of General Noriega to France to be retried for violations
of French law (the French agreed to vacate his original absentia
conviction).' 8 6 This request was made pursuant to an extradition
182. Associated Press, FederalJudge Reduces Noriega'sPrison Sentence by
10 Years, LUBBOCK ONLINE (Mar. 5, 1999), http://lubbockonline.
com/stories/030599/nat_030599058.shtml.
183. Noriega v. Pastrana, 564 F.3d 1290, 1293 n.1 (11th Cir. 2009), cert.
denied, 130 S. Ct. 1002 (2010).
184. Id. at 1292-93.
185. Id. at 1293 n.2. General Noriega owned several apartments in Paris and
frequently visited France during his time in power. The French alleged that he
laundered approximately 2.3 million euros in ill-gotten gains from his
connections with the Medellin drug cartel. Noriega to Stand Trial in Paris, RTE
NEWS (June 25, 2010), http://www.rte.ie/news/2010/0625/noriega.html.
186. Noreiga, 564 F.3d at 1293.
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8LOUISIANA LAW RE VIEW
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treaty in place between France and the U.S.1 87 In response to this
request, the U.S. filed a complaint for the extradition of General
Noriega to France.18 8
General Noriega objected to the extradition and filed a writ of
habeas corpus arguing that the GPW prevented his transfer to
France.' 8 9 Finally, it seemed that General Noriega's status as a
POW might provide him with a significant benefit. His challenge
was based on Article 87 of the treaty, which prohibits a detaining
power from transferring a POW to another power when the other
power refuses to recognize the detainee's POW status and respect
the Convention:
Prisoners of war may only be transferred by the Detaining
Power to a Power which is a party to the Convention and
after the Detaining Power has satisfied itself of the
willingness and ability of such transferee Power to apply
the Convention. When prisoners of war are transferred
under such circumstances, responsibility for the application
of the Convention rests on the Power accepting them while
they are in its custody.' 90
Because France had no intention of treating General Noriega as
a POW-perhaps unsurprising considering he was the Commanding
General of an Army not even in existence--General Noriega
asserted extradition would violate U.S. obligations under the
Convention.' 9 ' Unfortunately for General Noriega, he was about to
fall victim to a law enacted 17 years after his capture to limit access
to judicial remedies by a very different group of captives from a
very different war: the Military Commissions Act of 2006.192
Two significant questions were therefore raised by General
Noriega's invocation of the GPW to block his extradition: first,
whether the MCA bars a POW from invoking the GPW as a basis
for remedy in habeas proceedings in the United States, and second,
whether the GPW prevents the extradition of a POW from the
187. Extradition Treaty, U.S.-Fr., art. 1, Apr. 23, 1996, S. TREATY Doc. No.
105-13 (2002).
188. Noreiga,564 F.3d at 1293.
189. Id. General Noriega incorrectly filed his habeas petition under 28 U.S.C.
§ 2255, which allows a prisoner to challenge his sentence. The Federal District
Court nonetheless reviewed the case, expecting that a petition under the proper
habeas statute would be filed. General Noriega subsequently filed a petition
under 28 U.S.C. § 2241, asserting that he was being held in violation of the
GPW.
190. Geneva III, supra note 15, art. 12.
191. Noriega, 564 F.3d at 1294.
192. Pub. L. No. 109-366, §§ 5, 7, 120 Stat. 2600, 2631, 2635 (codified as
amended at 18 U.S.C. § 2441(e) (2006)).
2011]1
AMERICA'S LONGEST HELD POW
1139
detaining power to a country other than his home country upon
termination of hostilities.193
A. The MCA andHabeasReview
The first major issue raised by General Noriega's fight to block
extradition to France involved whether the court could even
consider a challenge based on invocation of the GPW in habeas
proceedings.1 94 In an effort to limit the ability of al-Qaeda and
Taliban captives held in Guantinamo from challenging their
detention, Congress included in the MCA (a law enacted for the
primary purpose of providing statutory authority for the trial of
alien unprivileged belligerents by military tribunal) several
provisions prohibiting or severely restricting the ability of a
prisoner to seek habeas relief.' 95 The provision of the MCA that
erected a barrier to General Noriega's invocation of the GPW is
contained in Section 7 of the Act, which bars enemy combatants
from habeas relief in U.S. courts. 196 Although federal courts
initially deferred to this provision in the MCA and refused to
entertain enemy combatant habeas petitions, in a landmark
decision the Supreme Court found this prohibition of habeas
review to be unconstitutional.1 97 In Boumediene v. Bush, the Court
held that Guantinamo detainees were constitutionally entitled to
seek habeas relief and therefore the MCA's prohibition violated
the Constitution.19
General Noriega's challenge did not, however, implicate the
invalidated Section 7 of the MCA. Instead, it was Section 5 of the
Act that the government cited to prevent General Noriega from
invoking the GPW. 199 Section 5 restricts the arguments that may be
raised by enemy combatants in a habeas action, but does not bar
habeas relief altogether. 20 0 Specifically, Section 5 provides that
enemy combatants are barred from invoking the Geneva
Conventions in civil actions against the U.S. in a U.S. court. 20 1
193. Noriega v. Pastrana, 130 S. Ct. 1002, 1002 (2010) (Thomas, J.,
dissenting).
194. Noriega, 564 F.3d at 1296.
195. See Military Commissions Act of 2006 §§ 5, 7.
196. Noriega, 564 F.3d at 1294.
197. Boumediene v. Bush, 553 U.S. 723 (2008).
198. Id. The Court did not address whether the Guantinamo detainees were
entitled to be awarded relief or whether they were lawfully detained.
199. Noriega, 564 F.3d at 1296.
200. Id. at 1294.
201. Military Commissions Act of 2006 § 5.
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0LOUISIANA LA W RE VIEW
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General Noriega's challenge required the court to address two
significant constitutional questions generated by Section 5. The
first issue was whether the GPW as a treaty trumped the
subsequent statute pursuant to the Supremacy Clause of the
Constitution.20 2 General Noriega argued that Congress could not
constitutionally enact legislation that nullified provisions of the
GPW.2 03 Thus, as a POW, General Noriega contended that he was
entitled to the protections of the Convention and therefore must
necessarily be permitted to make arguments under GPW in his
habeas proceedings, despite Section 5's ban against such
arguments.204 The second challenge presented by Section 5 of the
MCA was whether the limitation on the types of arguments that
could be made in habeas proceedings amounted to an unconstitutional
denial of habeas relief, much like the ban on habeas actions found to
be unconstitutional by the Supreme Court in Boumediene.2 05
The Federal District Court bypassed these constitutional
questions by rulin that the GPW did not bar the extradition of
General Noriega.m6 The Eleventh Circuit affirmed the lower
court's decision but made a specific determination that the MCA
controlled its resolution of General Noriega's challenge, finding
that Section 5 of the Act was a constitutional limitation on the
substantive law applicable during habeas actions. 20 7 As a predicate
matter, the appellate court opined that it did not need to determine
whether the GPW was self-executing and therefore judicially
enforceable. 208 The court reasoned that the Constitution
empowered Congress to enact any legislation it saw fit, even if that
legislation conflicted with the provisions of a self-executing
international treaty.209 The court noted that a statute enacted after
the adoption of a treaty nullifies the treaty's provisions to the
202. Noriega, 564 F.3d at 1295-96.
203. Id.
204. Id. at 1296-97.
205. Id. at 1294.
206. United States v. Noriega, 694 F. Supp. 2d 1268, 1273 (S.D. Fla. 2007).
207. Noriega,564 F.3d at 1295-96.
208. Id.
209. Id. This aspect of the court's decision is consistent with longstanding
federal jurisprudence and is traditionally characterized as the "last-in-time rule."
See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S.
581, 600 (1889), which concluded that treaties and acts of Congress are coequals pursuant to the Supremacy Clause, and "no paramount authority is given
to one over the other" and finding also that "the last expression of the sovereign
will must control." Because of this, courts historically presume that latter-intime statutes are intended by Congress to operate consistently with treaty
obligations. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64
(1804).
2011]
AMERICA'S LONGEST HELD POW
1141
extent that the treaty conflicts with the statute.
Thus, the court
rejected General Noriega's assertion that the MCA violated the
Supremacy Clause and found that "Congress has superseded
whatever domestic effect the Geneva Conventions may have in
actions such as [the Noriega case]." 211
The court further noted that the constitutional problems posed
by the bar to habeas actions in Section 7 of the MCA were not
present in Section 5.212 The court found that because Section 5
only prohibited General Noriega from making one type of
argument in his habeas proceeding and did not effectively ban him
from making all arguments in seeking habeas relief, Section 5's
limitation did not violate the Suspension Clause and was therefore
distinct from the defect identified in Section 7 by the Boumediene
decision. 213
Following the decision of the Eleventh Circuit, General
Noriega petitioned the Supreme Court for review of the decision, a
petition denied by the Court.2 14 The significance of the Eleventh
Circuit's interpretation of Section 5 was however revealed by the
fact that two Justices took the unusual step of dissenting to the
denial of the petition. Justice Thomas, joined by Justice Scalia,
filed a lengthy and vigorous dissent criticizing the Court's
215
unwillingness to provide a definitive interpretation of Section 5.
Justice Thomas argued that the Court needed to hear the appeal to
clariff the significant questions of law that were raised by the
case. 16 Specifically, Justice Thomas asserted that the petition
offered the Court an ideal opportunity to provide guidance on how
laws like that contained in Section 5 impact a prisoner's
constitutional right to habeas corpus. 2 17 Further, Justice Thomas
indicated that the Court needed to provide clarity on "whether the
and judicially
are self-executing
Geneva Conventions
enforceable." 2 18 What was particularly compelling about the
petition, according to Justice Thomas, was that it enabled the Court
to address an issue of potential critical importance to the "war on
terror" in a context immune from the charged atmosphere of
210.
211.
212.
213.
214.
215.
216.
217.
218.
Noriega, 564 F.3d at 1295-96.
Id. at 1296.
Id. at 1294.
Id.
Noriega v. Pastrana, 130 S. Ct. 1002 (2010).
Id. at 1002 (Thomas, J., dissenting).
Id. at 1002-03.
Id. at 1002.
Id.
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2LOUISIANA LAW REVIEW
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Guantinamo cases. 219 In short, General Noriega was an ideal
supernumerary for the eventual detainee challenges to Section 5.
The Supreme Court's decision to deny certiorari has a far
broader impact than the Noriega case. Even the inference that the
Eleventh Circuit's interpretation of Section 5 was correct will
invite other federal courts to avoid difficult questions of Geneva
220
Convention applicability in future detainee habeas litigation. In
contrast, a determination that Section 5 is invalid would place the
legislative and executive branches on notice that their efforts to
place limits not only on access to habeas review, but also on law
applicable to habeas review, are invalid. As Justice Thomas noted
in his dissent, without concrete guidance from the Supreme Court,
lower courts will continue to struggle with the validity and
applicability of Section 5 of the MCA in actions involving
detainees seeking habeas relief, actions that are unlikely to abate
after the Court ruled in Boumediene that outright denial of habeas
review is unconstitutional.
B. Extradition
Underscoring the confusion of the lower courts about the
relationship between the MCA and the constitutional right to
habeas corpus, the Eleventh Circuit analyzed whether the GPW
barred General Noriega's extradition to France, despite the court's
determination that Section 5 barred invocation of the GPW in
General Noriega's habeas proceeding. 22 1 The fact that the court felt
compelled to address General Noriega's GPW arguments despite
its determination that such arguments were invalid in habeas
proceedings is a clear indication of the significant uncertainty in
the law governing this area.
In deciding the permissibility of General Noriega's extradition
to France, the Eleventh Circuit first examined the applicability of
the extradition treaty in place between France and the U.S. 222 The
219. Id. at 1007.
220. Although General Noriega invoked only the GPW, that treaty is one of
four Geneva Conventions of 1949, each of which protects a distinct category of
war victims. See Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, T.I.A.S.
3362; Geneva Convention for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members at Sea, Aug. 12, 1949, T.I.A.S. 3363; Geneva
III, supra note 15; Geneva Convention Relative to the Treatment of Civilian
Persons in Time of War, Aug. 12, 1949, T.I.A.S. 3365.
221. Noriega v. Pastrana, 564 F.3d 1290, 1297-98 (11th Cir. 2009), cert.
denied, 130 S. Ct. 1002 (2010).
222. Id. at 1294-95.
2011]
AMERICA'S LONGEST HELD POW
1143
law of extradition is governed by treaties between nations and is
generally limited by the long-standing doctrines of speciality and
dual criminality. 223 Under these restrictions, a state seeking the
extradition of a person cannot try that person for offenses other
than those for which he is being extradited.2 2 4 Further, a state can
only extradite a person if the conduct for which he is being
prosecuted is illegal in both the surrendering state and the state
seeking the extradition.225 Under the treaty in place between
France and the U.S., each state is obligated to surrender a person to
the requesting state if the person is accused of an offense that is
"punish[able] under the laws in both States by deprivation of
liberty for a maximum of at least one year or by a more severe
penalty." 226 Thus, General Noriega's conviction in France for
money laundering met the qualifications established in the treaty,
satisfying the doctrines of speciality and dual criminality. 227 For
this reason, the U.S. asserted that contrary to General Noriega's
argument, it actually bore an affirmative treaty obligation to
surrender General Noriega to France under the treaty's terms. 22 8
General Noriega argued that Articles 118 and 119 of the GPW
prevented his extradition to France and that the Convention
required that he be repatriated to his home country of Panama. 229
Article 118 of the GPW obligates a detaining power to release and
repatriate POWs "without delay after the cessation of active
hostilities." 230 This provision is expanded upon in Article 119,
which states that "[p]risoners of war against whom criminal
proceedings for an indictable offense are pending may be detained
until the end of such proceedings, and, if necessary, until the
completion of the punishment. The same shall app to prisoners of
war already convicted for an indictable offense."2 Thus, General
Noriega asserted that the GPW trumped any extradition treaty
obligation between the U.S. and France and required the U.S. to
return him to Panama after completion of his criminal sentence in
the U.S. 232
223. See, e.g., Benitez v. Garcia, 449 F.3d 971, 976 (9th Cir. 2006).
224. See, e.g., Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir. 1986).
225. See, e.g., Ordinola v. Hackman, 478 F.3d 588, 595 n.7 (4th Cir. 2007).
226. Extradition Treaty, U.S.-Fr., art. 1, Apr. 23, 1996, S. TREATY Doc. No.
105-13 (2002).
227. Noriega v. Pastrana, 564 F.3d 1290, 1295 (11th Cir. 2009), cert. denied,
130 S. Ct. 1002 (2010).
228. Id. at 1294-95.
229. Id. at 1297-98.
230. Geneva III, supra note 15, art. 118.
231. Id. art. 119.
232. Noriega, 564 F.3d at 1296-97.
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4LOUISIANA LAW REVIEW
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The Eleventh Circuit rejected General Noriega's argument and
found that the GPW did not bar extradition. 2 First, the court
looked to the articles themselves and determined that the language
did not explicitly or implicitly bar extradition of a POW from one
state to be prosecuted criminally in another state. 234 The court also
noted that the stated purposes of the articles were to prevent
protracted detention of POWs while at the same time permitting
the detention of those being criminally prosecuted.2 3 5 Thus, the
court found that there was nothing in either Article 118 or 119 that
prohibited General Noriega's extradition to France.2 36
Further, the court examined Article 12 of the GPW, which, as
noted above, provides restrictions on the transfer of a POW from a
detaining power to another state, allowing such transfers only
when the receiving state agrees to apply the Convention.2 3 7 The
court noted that Article 12 did not provide any further restrictions
on the transfer of a prisoner from one country to another. 238 Thus,
the court determined that because both the U.S. and France are
parties to the GPW, and because France had provided the U.S. with
assurances regarding the rights and benefits General Noriega
would receive as a criminal defendant in France (although France
made no commitment to treat Noriega as a POW), Article 12 of the
Convention was satisfied and there was no bar to extradition. 239
The court rejected General Noriega's argument that Article
12's failure to include the word "extradite" as a method of transfer
necessarily implied that extradition was forbidden under the
Article's terms.24o Reasoning that the language of Article 12 of the
GPW is similar to that contained in Article 12 of the Fourth
Geneva Convention 24 1 ("GC IV"), the court pointed out that the
ICRC Commentary to Article 12 of the GC IV specifically
references extradition as a method of transfer. 242 Thus, the court
determined that the term "transfer" in Article 12 of the GPW
necessarily included extradition, reasoning that a contrary holding
would lead to the incongruous result "that a country would be
obligated to extradite a civilian [under the GC IV], but not a
233. Id. at 1299.
234. Id at 1298.
235. Id.
236. Id.
237. Id.
238. Id.
239. Id.
240. Id. at 1299.
241. Geneva III, supra note 15; Geneva Convention Relative to the
Treatment of Civilian Persons in Time of War, Aug. 12, 1949, T.I.A.S. 3365.
242. Noriega, 564 F.3d at 1298-99.
2011]
AMERICA'S LONGEST HELD POW
1145
prisoner of war [under the GPW], when they are facing identical
criminal charges." 243
Thus, although the Eleventh Circuit found that General
Noriega was barred by Section 5 of the MCA from making
arguments under the GPW in his habeas action, it nonetheless
examined the substance of his arguments under the Convention. In
so doing, the court determined that the GPW does not bar a
detainee's extradition to another country for criminal prosecution
when the receiving country is a signatory to the Convention and
the transferee country is satisfied that the receiving country will
treat the transferee in a manner consistent with the GPW.
Following the Supreme Court's denial of certiorari in the case, and
almost three years after the French government made its initial
request, extradition proceedings in the Noriega case
commenced. 2 44 General Noriega has since been transferred to
France, prosecuted, convicted, and sentenced to an additional
seven years in prison. 245
CONCLUSION
General Noriega's journey through the American legal system
demonstrates many of the difficult issues related to addressing the
extraterritorial conduct of enemy personnel in U.S. courts.
Scholars and commentators generally have overlooked his journey,
which has been overshadowed by the more proximate issues of the
so-called war on terror. However, in many ways the legal issues
triggered by General Noriega's capture, prosecution, and
extradition serve as a prologue to the innumerable challenges
confronted by our nation following the terrorist attacks of
September 11, 2001. It would be disingenuous to suggest some
larger profound lesson from his experience. However, his
experience, or perhaps more appropriately the efficacy of existing
law to address the many issues generated by his capture and
prosecution, serves to illustrate that existing international and U.S.
law provide a rational and sufficiently flexible framework for
reconciling national security interests and the rights of wartime
captives. Issues relating to General Noriega's status as a POW and
the rights afforded to him under international conventions, the
applicability of U.S. law to acts committed by the General
243.
244.
TIMES,
245.
TIMES,
Id. at 1299.
Elisabeth Malkin, Noriega Extradited to France to Face Charges, N.Y.
Apr. 26, 2010, at A12.
David Jolly, French Court Sentences Noriega to Seven Years, N.Y.
July 7, 2010, at A12.
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6LOUISIANA LAW REVIEW
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overseas, and the ability of the U.S. to extradite General Noriega
were all effectively addressed using laws in place at the time of his
detention.
This does not, of course, mean that the law related to the
treatment of captured enemy personnel is without uncertainty. As
explained throughout this Article, government legal advisors,
prosecutors, defense lawyers, and judges were challenged by a
number of unique legal issues related to General Noriega. What is
significant about General Noriega's case, however, is the
commitment of the state and judiciary to address those challenges
within the framework of existing law, with no attempt to erect
extra-legal solutions for novel problems. This commitment
provides a lens through which judges, lawyers, and scholars alike
can view the complex legal issues that will inevitably confront the
nation in the future. Policies and procedures historically in place to
safeguard the rights of those faced with the prosecutorial power of
the U.S. are sufficiently authoritative and adaptable to protect
those who are captured by American forces in contexts not
previously contemplated.