Legal Commentary

Manuel Noriega, the Supreme Court, and the War on Terror

By John Elwood

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.)

Full post as published by The Volokh Conspiracy on January 06, 2010 (boomark / email).