I read with interest Justice Thomas’ dissent in Noriega v. Pastrana – Co-Conspirators Elwood and Adler have discussed it earlier here. My interest is different from the current controversy, as I was involved in the Noriega saga on the front end, first monitoring the increasing civil disturbances in Panama during the last couple of Noriega’s rule on behalf of Human Rights Watch, then covering the US invasion and aftermath for it and writing a couple of lengthy reports, and last drafting an amicus brief for Human Rights Watch submitted in the original dispute over POW status and convicted felon sentencing to which Justice Thomas refers in his dissent.
I had more or less forgotten this, and have long since lost the original amicus brief, but am pleased to note that Judge Hoeveler, the District Court judge in Miami, liked the amicus and consulted it a lot, noting in his 1992 opinion (808 F.Supp. 791):
Subsequent to argument, Human Rights Watch was permitted to file a Motion for Leave to Submit an Amicus Curiae Memorandum and coincident to the Motion, presented the Memo. The Court granted the Motion and has considered the well-developed presentation of Human Rights Watch. Indeed, each of the parties has carefully and exhaustively presented positions on the problem facing the Court.
Heck, hooray for me! Justice Thomas says – and indeed all litigation over Noriega’s status after the 1992 opinion takes as the beginning point – that Judge Hoeveler found Noriega to be a POW. That is true. Judge Hoeveler’s opinion concludes that the defendant is “both a convicted felon and a prisoner of war.” He reaches that conclusion after one of the first serious inquiries into the standards for being a POW under the Geneva Conventions and the question of self-execution made by US district courts. But there remain several peculiarities that, while surely not affecting the subsequent course of litigation, or Justice Thomas’ dissent, are peculiar. Part of these relate to the fact that the hearing at issue was not the trial itself, nor even sentencing, but a post-sentencing hearing in which the court might make a recommendation on incarceration – a recommendation to the Bureau of Prisons, but ordinarily no more than that.
Although Judge Hoeveler concluded that General Noriega was a POW, he noted that the United States had never formally conceded the point. Rather, the government said that it would act as though he were, including in the nature of his incarceration. Given that the government had already gone to the trouble and expense of constructing a special Geneva-compliant prison arrangement for Noriega, that seemed an easy concession – in effect, not to move him, allow meetings with the International Committee of the Red Cross, and various other provisions. In addition, the defense was eager to avoid what the government might have considered doing if treated as a POW but convicted of a common crime – put Noriega in the same confinement as a US soldier convicted of a common crime, in this case Leavenworth. Both government and defense had reasons for not shifting things. But as Judge Hoeveler observes:
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. (Emphasis added)
He added in a footnote:
See Gov’t Resp. to Def.Sent.Memo., Jul. 9, 1992 at 2-3, 15 (“the government will not dispute for these purposes defendant’s contention that he is entitled to the protections accorded to prisoners of war under the Geneva Convention…. Defendant’s status as a prisoner of war is not an issue; he has been accorded the status of a prisoner of war.”); Letter from the State Dep’t to the Attorney General of the United States, Jan. 31, 1990 (“the Department of State and the Department of Defense … agreed that all individuals captured during the hostilities would be provided the protections normally accorded to prisoners of war until their precise status could be determined. The same Departments subsequently decided that these protections should be provided to any members of the PDF [Panamanian Defense Forces] who fell into U.S. hands until their final release and repatriation even if they might not be entitled to these protections under the terms of Article 4 of Geneva Convention III.”); Dep’t of the Army Memo. of Law, Mar. 29, 1990 (“the United States has made no formal decision with regard to whether or not General Noriega and former members of the PDF charged with pre-capture offenses are prisoners of war, but has stated that each will be provided all prisoner of war protections afforded by the law of war.”); Gov’t Resp. to Def.Post-Hearing Memo. of Law, Sept. 29, 1992 at 8 (“Defendant enjoys, and will continue to benefit from, the full panoply of [Geneva Convention] provisions” even if incarcerated in a federal penitentiary); Gov’t Resp. to Def. Noriega’s Challenge to Court’s Jurisdiction, Feb. 2, 1990 at 5-6 (“the government intends to provide prisoner of war treatment to Noriega”).
Judge Hoeveler was evidently not satisfied with the statement that the government would treat Noriega as though he were a POW – he discusses at length ways in which the government might unilaterally change that treatment. This is partly what leads him to proffer a formal POW designation. And yet, although designating Noriega a POW as well as convicted felon, Judge Hoeveler had deep doubts that he had the authority to order to Bureau of Prisons to confine Noriega in one locale or another.
Having considered the memoranda submitted, the argument of counsel, and all other materials relevant to this inquiry, the Court has concluded that it lacks the authority to order the Bureau of Prisons (“BOP”) to place General Noriega in any particular facility. However, as with all sentencing proceedings, it is clearly the right-and perhaps the duty-of this Court to make a recommendation that the BOP place Noriega in a facility or type of facility the Court finds most appropriate given the circumstances of the case. The Court takes this responsibility quite seriously, especially in the novel situation presented here where the defendant is both a convicted felon and a prisoner of war. This dual status implicates important and previously unaddressed questions of international law that the Court must explore if it hopes to make a fair and reasoned recommendation on the type of facility in which the General should serve his sentence. (Emphasis added.)
The court frames the place of incarceration as a recommendation in a post-sentencing hearing, but later makes a much tougher and categorical statement about POW status:
Passing for the moment the facts that an appeal has been taken and that to this point, at least, no violation of Geneva III is evident, the Court feels and so determines it has the authority to decide the status issue presented. This is not to say that the Executive branch cannot determine this issue under other circumstances. The Court does suggest that where the Court is properly presented with the problem it is, under the law, a “competent tribunal” which can decide the issue. With that in mind, the Court finds that General Noriega is in fact a prisoner of war as defined by Geneva III, and as such must be afforded the protections established by the treaty, regardless of the type of facility in which the Bureau of Prisons chooses to incarcerate him. (Emphasis added.)
Well, I don’t suppose any of the 1992 court’s concerns about lacking the authority to tell the BOP where to keep Noriega has any relevance to the extant question of extradition. But these paragraphs are perhaps telling in just how contemporary they feel. Article 5 status hearing tribunals? Self-execution of the Geneva Conventions? When should a court decide status and when the Executive? At a minimum, all this suggests that Justice Thomas was right in arguing that the questions presented by the United States’ only POW would indeed have bearing on the status of the Geneva Conventions in US courts in its detainee litigation.