On Monday, the US Supreme Court refused to take up his case. The action lets stand a lower court decision approving his removal to face criminal charges in a French court, where he was tried and convicted in absentia and faces up to 10 years in prison.
Although Noriega is the only official prisoner of war currently in US custody, his appeal sought an examination of the constitutionality of legal provisions passed by Congress to undercut appeals on behalf of terrorism suspects at the Guantánamo Bay, Cuba, detention camp.
In answering Noriega’s appeal, the US solicitor general’s office cited the 2006 Military Commissions Act, which the government argued precludes a person detained as a POW from invoking the Geneva Conventions as a source of rights in a lawsuit challenging the legality of the POW’s detention.
In his dissent, Justice Thomas said the high court should examine the issues raised by Noriega. He said any resulting opinion would provide much-needed guidance to the lower courts in cases involving Al Qaeda suspects.
Noriega's special POW status
Issues raised in the appeal include whether the 2006 Military Commission Act, as enforced against Noriega, resulted in an unconstitutional suspension of the writ of habeas corpus. The appeal also questioned whether the protections of the Geneva Conventions can be invoked by an individual POW and whether those protections may be enforced by US judges.
“It is incumbent upon us to provide what guidance we can on these issues now,” Thomas wrote in a 15-page dissent. “Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the government years of unnecessary litigation.”
The high court rejected Noriega’s appeal in a one-line order without explanation. No other justices wrote about the Noriega case.
Out of prison – and resisting extradition to France
Noriega was convicted in a 1992 trial in Miami of cocaine trafficking, racketeering, and money laundering. His 40-year sentence was later reduced for good behavior. He completed his sentence in September 2007.
Since then, he’s been fighting extradition. Noriega’s lawyers argued that as a prisoner of war he should be sent home to Panama now that his US prison sentence has been served.
Although he was a criminal defendant, the judge at Noriega’s trial in Miami also ruled that the US government must treat him as a prisoner of war because of his surrender to US military forces during the 1989 US invasion of Panama. It was this POW status that his lawyers were seeking to use to force the US government to send Noriega home to Panama rather than to France.
“The Prisoner of War Convention requires the immediate return home of prisoners of war at the end of hostilities subject to completion of any sentence imposed for crimes prosecuted by the detaining power,” wrote Miami lawyer Jon May in his brief on behalf of Noriega. “Only in the case of war criminals is any exception permitted.”
Not so, countered Solicitor General Elena Kagan in her brief. “The Third Geneva Convention does not prohibit the extradition of a prisoner of war to face criminal charges in another country,” she wrote. “[Noriega’s] challenges to that conclusion lack merit.”
Ms. Kagan said the conventions permit a detaining country to transfer a POW to another country to face pending criminal charges once the detaining country is satisfied that the receiving country will abide by the Geneva Conventions. She said these requirements have been satisfied by means of diplomatic communications between the US and France.
The solicitor general also cited the Military Commissions Act (MCA) as barring prisoners from invoking the Geneva Accords as a source of rights.
Congress intended that the Geneva Conventions not be judicially enforceable in any court in the US, she said.
Noriega’s lawyers argued that the rights of “hundreds” of US prisoners were at risk. The government’s interpretation of the MCA renders the statute unconstitutional, Mr. May said.
Restrictions to a prisoner’s ability to claim the right of habeas corpus can themselves result in an unconstitutional suspension of the writ. “By denying the courts the authority to consider violations of the Geneva Convention, Congress has done just that,” May wrote.
The 11thUS Circuit Court of Appeals rejected this argument, ruling that Noriega lacked the authority to claim a private right of action under the Geneva Conventions. In addition, the court found that the US had complied with the Geneva Accords and that Noriega’s extradition to France would not violate his rights under the Third Geneva Convention.
How Noriega came into US custody
Noriega’s case is unique because of the circumstances surrounding his capture and arrest.
After Noriega declared war on the US in 1989, 58,000 US troops invaded Panama. A group of Navy SEALS were tasked to find and capture him in Operation Nifty Package.
Noriega eventually fled to the Vatican Embassy. US forces surrounded the building and blasted rock music at the embassy around the clock – including “I Fought the Law and the Law Won.”
Two weeks after the invasion, Noriega surrendered and was ushered into a waiting C-130 transport plane where Drug Enforcement Administration agents placed him under arrest. He was charged with cocaine trafficking, racketeering, and money laundering.
Later, the judge in his case found that Noriega, in addition to being a criminal defendant, must be treated by the US government as a prisoner of war because of the special circumstances of his capture.
The designation meant Noriega was permitted to wear his uniform during the trial and was given more spacious quarters in federal prison and special furnishings in his cell. He also received visits from the International Committee of the Red Cross.
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