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11th Circuit rules that Noriega can be extradited to France, holds that the Military Commissions Act prevents assertion of rights under the Geneva Convention on POW’s

Manuel Noriega

Manuel Noriega

Yesterday, the 11th Circuit Court of Appeals ruled that former Pamanian leader Manuel Noriega can be extradited to France. What is most interesting about the opinion is that the court held that Section 5 of the Military Commission Act precludes Noriega from claiming rights under the Geneva Convention on Prisoners of War. As will be recalled Section 5 provides:

No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to
which the United States, or . . . agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

As the court notes:

Noriega maintains that while under § 5 he cannot invoke the Third Geneva Convention as a source of individual rights in a judicial proceeding, “his right to enforce the provisions of the Geneva Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice [is] in no way abrogated.” (Appellant’s Reply Br. 15.) Thus, Noriega argues that article 118 of the Third
Geneva Convention mandates that he be immediately repatriated to Panama, as his term of imprisonment in the United States is complete. See Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”).

But the court concluded

Despite Noriega’s arguments to the contrary, it appears that Noriega is invoking the Third Geneva Convention as a source of rights—the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action. The district court appears to have read § 5 similarly, noting that § 58 “attempts to remove entirely the protections of the Convention from any person, even a citizen of the United States, in any American courtroom whenever the United States is involved.” Noriega II, 2007 WL 2947572, at *4. The Court of Appeals for the District of Columbia Circuit has also suggested that the language of § 5 is unambiguous. See Boumediene v. Bush, 476 F.3d 981, 988 n.5 (D.C. Cir. 2007) (concluding that “[s]ection 7 [of the MCA] is unambiguous, as is section 5(a)”), rev’d __ U.S. __, 128 S. Ct. 2229 (2008) (holding that § 7 unambiguously eliminates habeas jurisdiction but is unconstitutional).
These readings of § 5(a) are consonant with the MCA’s legislative history, which further suggests that the express language of § 5 was understood to preclude individuals from invoking the Geneva Conventions as a source of rights. See, e.g., H.R. Rep. No. 109-731 (2006) (“Section 5 of the MCA clarifies that the Geneva Conventions are not an enforceable source of rights in any habeas corpus or other civil action or proceeding by an individual in U.S. courts.”); H.R. Rep. No. 109-664(II) (2006) (noting that the section “would prohibit any court from treating the Geneva Conventions as a source of rights, directly or indirectly, making clear that the Geneva Conventions are not judicially enforceable in any court of the United States”); 152 Cong. Rec. S10354-02, S10400 (daily ed. Sept. 28, 2006) (statement of Sen. Kennedy) (“[T]he bill expressly states that the Geneva Conventions cannot be relied upon in any U.S. court as a source of rights.”); id. at S10414 (statement of Sen. McCain) (“[This legislation] would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions.”).
Accordingly, the plain language of § 5 of the MCA, which is clearly supported by its legislative history, precludes Noriega’s Geneva Convention claims. As the Geneva Convention is Noriega’s only substantive basis for relief he has failed to state a claim upon which habeas relief could be granted. (footnotes omitted)

A couple of comments.

First, I am not convined that section 5 of the MCA is constitutional. The court applies the later-in-time doctrine and argues that a federal statute supersedes a prior treaty as a matter of domestic law. This doctrine is correct, but is that was section is seeking to do? If the Geneva Convention said “X” and the MCA said “Not X,” it would be clear that the MCA, which was adopted after the Geneva Convention, would prevail. But what section 5 seeks to do is to instruct a court that it cannot apply provisions of a treaty in habeas proceedings. How can Congress tell the courts that they cannot apply what is designated by Article IV the Constitution to be part of the “Supreme Law of the Land.” (See, Carlos M. Vázquez’s discussion on this issue in the context of Hamdan.) As Deborah Pearlstein has written:

Cases involving treaties pose questions about the supreme law of the land, and thus clearly fall within the express judicial power of the U.S. federal courts to decide. It is therefore not at all clear what the Act means when it establishes that this particular set of treaties cannot be invoked as a “source of rights” in any U.S. court. (footnote omitted)

Pearlstein concludes:

As long as the judiciary really has the power to “say what the law is,” however, Congress cannot simply ask the courts to ignore certain laws just because it is too afraid to bear the political consequences of taking them off the books. If Congress wanted to terminate U.S. participation in the Geneva Conventions (since Common Article 3 under the treaty is non-derogable), it enjoys that power. But it cannot pretend Geneva is still good law while denying the courts the authority to say what it means. It is for that reason, among many others, that any attempt to construe the MCA as forbidding the courts from considering what rights exist under the Geneva Conventions, should fail.

I agree and would not be surprised if the Supreme Court would too, were it to reach the issue.

Second, the 11th Circuit could have reached the same conclusion about Noriega’s extradition without ever having to address the question of section 5. The District Court had ruled that the extradition would be consistent with the Geneva Convention. And, indeed, after having pronounced on section 5, the Circuit Court went on to say the same thing. The court explained:

Nevertheless, assuming arguendo that the Third Geneva Convention is self- executing and that § 5 of the MCA does not preclude Noriega’s claim, we agree with the district court that the Third Geneva Convention does not prevent Noriega’s extradition to France and that the United States has fully complied with its obligations under the Convention.

The court then explains how extradition is permissible under Articles 12, 118, and 119 of the Convention.

So Where now?

My suspicion is that the Supreme Court will deny cert, and even if were to grant cert, would likely not rule on the status of Section 5 of the MCA. Instead, the Court would probably take the same approach as the District Court.

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2 Comments

  • Max Lybbert says:

    I understood that Noriega is not actually a Prisoner of War, even though he was taken prisoner during a military action. Instead, I understood, that he is an everyday criminal convicted in a normal federal court, serving out his sentence in a normal federal prisoner. He just happened to be captured by the armed forces, and arrested by (if I recall correctly) the DEA when he reached US soil.

    So repatriation under the Geneva Conventions doesn’t make sense. Instead, this is a normal extradition action, and he needs to argue it as such.

  • Noriega declared himself Head of State and He was captured by a military action but he didn’t fight because he went to refuge to Vatican mission in Panama. I understood that Noriega was recognized as POW by Judge Hoverer’s ruling in 1992. And this point is not actually refused or discussed by 11 Crt. CA’s ruling. In fact discussion here is if he should be extradited to France first where he was convicted for drug related crimes (by an action filed in France by Panama Government to obtain funds and real state investments of Noriega in Paris) and after be repatriated to Panama where he was convicted for murder. Noriega wanted to go to Panama first but may be today he is not actually sure if the PRD Party where he has many friends is not reelected on Presidential Elections on the 3 of May. I thing he prefers to stay in US. Panama Government filed a request to US Government to obtain repatriation of Noriega. France filed also a request for extradition based in the US-France Treaty. Noriega tries to stop his extradition to France using the III Geneva Convention. I thing the Geneva Convention was not signed to stop extradition of common criminals but I think it will be very interesting if Supreme Court rules about Sec. 5 of MCA and declare it unconstitutional.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.