Former Panamanian general and “chief executive officer” Manuel Noriega will forever be associated with the “war on drugs”: After the US invaded Panama and removed him from power in 1989, he was convicted of federal drug trafficking charges and he has been in prison ever since. But it appears that he has come to the Supreme Court’s attention this Term because he has raised legal questions relating to a different war–the “war on terror.” And he definitely has the Court’s attention: Among the cases that the Supreme Court has relisted for consideration at the Court’s private conferences, none this Term has been relisted more times than Manuel Noriega v. Pastrana, 09-35.
Noriega was convicted in 1992. In response to complaints about his conditions of confinement, District Judge William Hoeveler declared him to be a prisoner of war and the federal government, in what must seem like a bad idea in retrospect, chose not to appeal. I have heard that Noriega has been provided with various items to which POWs are entitled (such as a complaint box) and he is entitled to wear the military uniform of his long-defunct regime. His original sentence of 40 years was reduced to 30 years, and because he was parole eligible under the pre-Guidelines system, he was scheduled to be paroled in September 2007. But before he could be paroled, France asked us to extradite him so he could face money-laundering charges there. Noriega was convicted in absentia there (but he apparently will be able to seek a new trial upon his surrender to French authorities).
A federal magistrate judge certified Noriega for extradition, but he resisted, claiming he could not be extradited under the Third Geneva Convention relative to the treatment of prisoners of war, Article 118 of which provides that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” (Seems like that would have occurred by 2007, or even by 1992, but I digress.) The district court rejected his habeas corpus petition, and the Eleventh Circuit affirmed in an opinion by the itinerant Judge Restani, sitting by designation from her usual seat on the Court of International Trade (and joined by Judges Dubina and Carnes). The court held, first, that Noriega had failed to “assert any applicable law which would prevent his extradition to France.” (The reasoning goes that the Geneva Convention permits continuing to hold POWs who have committed criminal offenses, and besides, we have a separate extradition treaty with France.) Second, it held that section 5(a) of the Military Commissions Act of 2006–enacted in the waning days of the Republican Congress to provide a statutory basis for trying enemy combatants in military commissions in the wake of Hamdan v. Rumsfeld, 548 U.S. 557 (2006)–provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action.” The court concluded that “it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty,” slip op. at 10 (citing Medellin v. Texas, 128 S. Ct. 1346, 1359 n.5 (2008)), and that “Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.” Id. at 11.
Noriega filed a cert petition on July 7; the government opposed cert, and Noriega filed a reply. Since then, the case has been relisted a whopping eight times (at the Court’s 10/9, 10/19, 10/30, 11/6, 11/13, 11/24, 12/4, and 12/11 conferences). The case is currently on the calendar for consideration at this Friday’s conference.
It is highly unusual for the Court to relist a case so many times. When the Court relists repeatedly, in my experience, it typically means one of three things: (1) one of the Justices wants time to consider concerns raised by another Justice at conference in order to decide how to vote; (2) the Court is preparing an opinion summarily reversing the decision below; or (3) someone is writing a dissent from denial of cert. It’s impossible to know with any certainty what is going on inside a “black box” like the Court; but based on the docket, I have my suspicions.
It clearly isn’t (1): It typically takes no more than one or two relists to give a Justice time to review a case in detail to know whether concerns raised by another Justice warrant a grant. Nor do I think summary reversal is in the offing. That step ordinarily is reserved for cases in which an appeals court decision is clearly erroneous under established law, and in my view, the law in this area wouldn’t support a showing that the Eleventh Circuit’s decision was so clearly wrong as to warrant summary reversal. Thus, it seems likely that someone is writing a dissent from denial of certiorari. I would think the favorite candidate to author such an opinion would be Justice Stevens, the author of numerous opinions with “Rumsfeld” in the caption (i.e., war on terror detention opinions–majority opinions in Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, supra, and a dissent in Rumsfeld v. Padilla, 542 U.S. 426 (2004)) and who, as a veteran, may not be a huge fan of a provision stating that the Third Geneva Convention won’t support a habeas petition. Another possibility is Justice Breyer, who dissented from the Court’s opinion two terms ago in Medellin v. Texas, supra, the Court’s most recent exegesis on what makes a treaty self-executing and on Congress’s ability to change domestic law notwithstanding an earlier treaty.
With apologies to General Noriega, I doubt the dissenters are very much concerned about his case, but rather are concerned because of its implications for an entirely different class of cases. Section 5 of the 2006 MCA, after all, wasn’t enacted to address Noriega’s confinement, but rather to address (among other things) detention of suspected enemy combatants in the war on terror. The Justice Department invoked the Eleventh Circuit’s decision the day after it was announced in a filing in D.C. District Court to oppose claims by Guantanamo detainees challenging their conditions of confinement under the Third Convention. As Noreiga’s reply brief states, “[t]he decision below affects the rights of hundreds of prisoners in United States’ custody. While these prisoners are currently designated ‘enemy combatants,’ no court has yet decided their status under the Geneva Convention.” Reply Br. 1.
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court invalidated section 7 of the MCA, holding it violated the Suspension Clause to the extent that it “deprive[d] the federal courts of jurisdiction to entertain the habeas corpus actions” brought by alien enemy combatants. Id. at 2244, 2274. In a footnote in its brief in opposition in this case, the government distinguishes section 5 from section 7, stating that “[u]nlike Section 7, which was a jurisdiction-stripping provision, Section 5 does nothing to prevent a person from seeking habeas relief. It merely removes ‘one substantive provision of law upon which a party might rely in seeking habeas relief.’” Br. in Opp. 8 n.* (quoting the Eleventh Circuit’s decision). Although the Eleventh Circuit similarly concluded that “[w]e are not presented with a situation in which potential petitioners are effectively banned from seeking habeas relief because any constitutional rights or claims are unavailable,” it may be that some of the Justices disagree, or at least have sufficient concerns that they’d like to hear the case on the merits.
But it’s even taking a bit long to get out a simple dissent from denial of cert., which may suggest that someone who opposes cert has filed a concurrence in the denial of cert, and the concurrence and dissent are busy trading barbs. See, e.g., Callins v. Collins, 510 U.S. 1141 (1994) (Scalia, J., concurring in denial of cert, and Blackmun, J., dissenting from it). As suggested by the Callins cite, one obvious candidate is Justice Scalia, who has written similar opinions before and who has been known to disagree with Justice Stevens on detention issues (except in Hamdi v. Rumsfeld, 542 U.S. 507 (2004)). Another possibility, suggested by my former OLC colleague Steve Engel, is Chief Justice Roberts, who was the author of the majority opinion in Medellin. (Or perhaps, as discussed in earlier posts, it may just be that everything is gummed up because of Citizens United.)
As an aside, note that the D.C. Circuit’s important war on terror detention opinion today, Al-Bihani v. Obama, notes that “the MCA of 2006, in a provision not altered by the MCA of 2009, explicitly precludes detainees from claiming the Geneva conventions—which include criteria to determine who is entitled to P.O.W. status—as a source of rights. See 2006 MCA sec. 5(a).” (Thanks again to the eagle-eyed Steve Engel for the tip.)
UPDATE (January 11, 2010): The Court has relisted the case a ninth time. It’s on again for conference this coming Friday, January 15.
DMore says:
Super-smart posts like this one are reason enough to read Volokh. Thanks, John.
January 6, 2010, 12:02 amOrin Kerr says:
Interesting post, John. That sounds like a sensible prediction to me.
January 6, 2010, 1:23 amMartinned says:
Withdrawal (or at least purported withdrawal) from a treaty by later statute, cool!
(Think of how much fun we would have missed if the US procedure for ratification had been the same as for passing a statute, as it is in most countries.)
January 6, 2010, 8:58 amWednesday round-up | SCOTUSblog says:
[...] the Volokh Conspiracy, John Elwood ponders the Court’s much-delayed cert. decision in Noriega v. Pastrana, a request by [...]
January 6, 2010, 9:12 amTweets that mention The Volokh Conspiracy » Blog Archive » Manuel Noriega, the Supreme Court, and the War on Terror -- Topsy.com says:
[...] This post was mentioned on Twitter by Supreme Court, Eugene Volokh. Eugene Volokh said: Manuel Noriega, the Supreme Court, and the War on Terror: Former Panamanian general and “chief executive office.. http://bit.ly/4Foblk [...]
January 6, 2010, 10:59 amMartinned says:
O, and another thing: Is he a POW or a criminal prisoner? AFAIK, you can’t be both at the same time, except for crimes committed in detention. So if a court has declared him to be a POW, how come he’s still being detained, even though the US aren’t at war with Panama (anymore)? And how come he will now be extradited, even though IIRC that’s not allowed for POW?
January 6, 2010, 11:14 amChris Travers says:
Another interesting question to my mind is that his detention, as a POW, might not be legal at this point anyway. It might not have been legal at the point the MCA was enacted.
I wonder if there is any remedy in France (which presumably takes the GC’s somewhat seriously) for this sort of issue? Maybe they can sentence him to time served in the US?
January 6, 2010, 11:56 amMartinned says:
Even under the rules of the ECHR, France is not responsible for acts of the US authorities, at least not unless France somehow caused them. (For example by asking the Americans not to release him for a bit longer.) The Eichmann-rule of male captus, bene detentus isn’t good law anymore, but I don’t think French law would provide a remedy for a case where the extradition itself is lawfully arranged.
Whether they would sentence him to time served depends, of course, on whether he served any time at all. POWs don’t “serve time”, they’re just being detained. If he is found to have served time already, the regime on concurrence would apply. Quick lesson for my American friends (from the French government’s official translation of the French penal code):
Sentencing people to 15 consecutive life sentences is generally not considered sensible arithmetic outside the United States.
January 6, 2010, 12:42 pmRich Rostrom says:
Someone cannot be both a criminal arrestee and a PoW?
Let us suppose that a crime was committed in the U.S. in 1937. The perpetrator was not then known. The perpetrator, for unrelated reasons, moved to Italy. He he entered the Italian army and was taken prisoner by U.S. forces in Sicily in 1943. In 1944, evidence came to light identifying the perpetrator. Can the U.S. now indict him for that crime? Suppose he was captured by British forces and held prisoner in the U.K. (many Italians PoWs were farm laborers during during the war). Can Britain extradite him to the U.S.?
Suppose a German who had committed a crime in Switzerland in 1927 was captured by U.S. forces in France in 1944? Could the U.S. extradite him to Switzerland?
Or to take an even weirder question: an Italian commits a crime in Naples in 1939. He is not then detected. In 1942 he is captured by British forces in Libya. In 1944, after the Allied occupation of southern Italy, the Naples police get evidence against him. Can the Allies turn him over to the Italian authorities?
Or, in all of these cases, does the criminal prosecution have to wait on the end of the war?
January 6, 2010, 3:09 pmMartinned says:
@Rich Rostrom: My earlier comment was based on my – somewhat sketchy – recollection. Here’s what the Geneva Convention (the third one) actually says:
It seems to me this still means someone can’t be a POW and a criminal prisoner at the same time. Until the cessation of hostilities, a POW remains a POW, and afterwards he can be tried for any crimes he may have committed.
So yes, I was (mostly) wrong.
January 6, 2010, 3:48 pmChris Travers says:
Does extradition count? I.e. is there some way Noriega could argue in a French court that the French government caused the US government to breach the GC’s by having him extradited?
January 6, 2010, 3:51 pmSW says:
The last sentence says directly that they can be: The same shall apply to prisoners of war already convicted for an indictable offence.
January 6, 2010, 3:58 pmShelbyC says:
“Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.”
IIRC there are limits to what is an indictable offense as well. They can’t be charged for crimes commited as part of legitimate combat, can they?
January 6, 2010, 5:33 pmMartinned says:
No, if for no other reason than that such acts wouldn’t normally be crimes. (But you can’t make being an enemy soldier a crime, AFAIK.)
That’s not my reading. I would say that sentence contemplates a transfer of the detainee from the POW camp to a prison, at which time his status changes from POW to civilian prisoner.
January 6, 2010, 6:01 pmMartinned says:
I should have probably read the CA ruling before commenting, but look at what the OP says about it:
This second argument clearly wouldn’t fly in a French court. Under French law, AFAIK, all treaties made have direct effect if they are by their nature capable of having such effect. French Constitution:
Assuming the French court agrees with the American court’s interpretation of article 119, I’d say that would be the end of it. If the French court doesn’t agree, I’m not sure what they would do. Most ECtHR extradition case law is about people trying to avoid being extradited to somewhere dodgy, like Soering who complained about the agony of having to spend decades on American death row, and won. (There was no ECHR ban on the death penalty at the time, so he argued it under art. 3, the prohibition of “torture or inhuman or degrading treatment or punishment”.) In a quick search, I can find no ECtHR precedent for the situation where someone is extradited from outside Europe to an ECHR country in a legally problematic way. (I did come across Kerr v Illinois, a 1886 US Supreme Court case about the male captus principle.) When I do, I’ll let you know.
January 6, 2010, 6:36 pmThe Volokh Conspiracy » Blog Archive » Court action at last in Noreiga v. Pastrana says:
[...] I predicted in my interminable post here, there was a dissent from denial of cert. But the dissent most certainly did not come from the [...]
January 25, 2010, 12:41 pm