US v. Noriega

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: Frank A. Rubino, Jon May, Coconut Grove, FL, for defendant
• Citation: US v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992)
• Decision Date: 08 December 1992
• Docket Number: No. 88-79-Cr.,88-79-Cr.
• Parties: UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant.

808 F. Supp. 791

UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant.

No. 88-79-Cr.

United States District Court, S.D. Florida.

December 8, 1992.

Michael P. Sullivan, Guy Lewis, Asst. U.S. Attys., Miami, FL, for plaintiff.

Frank A. Rubino, Jon May, Coconut Grove, FL, for defendant.

RECOMMENDATION

HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court again with another unique question, this time incident to sentencing. Ordinarily, the Court can do no more than recommend the place and/or institutional level of confinement for convicted defendants. At sentencing, the question of General Noriega's prisoner of war status as that status relates to confinement was raised, and the parties were afforded time to submit memoranda, which they did. Argument was heard on November 13, 1992.

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.

Defendant contends that the Geneva Convention Relative to the Treatment of Prisoners of War ("Geneva III"), August 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135,¹ is applicable law that the Court must recognize. Defendant urges further that whether or not the U.S. government classifies General Noriega as a prisoner of war ("POW"), he is one, in fact, and must be afforded all the benefits of that status.

Before the Court are several questions, but the ultimate one appears to be whether or not the Geneva Convention prohibits incarceration in a federal penitentiary for a prisoner of war convicted of common crimes against the United States.² To resolve this issue the Court must consider three interrelated questions: 1) what authority, if any, does the Court have in this matter; 2) is Geneva III applicable to this case; 3) if so, which of its provisions apply to General Noriega's confinement and what do they require?

I. AUTHORITY OF THE COURT

The Court is presented with an unusual question about the scope of its own authority — namely, does a court retain any power to decide an issue relating to confinement arising in a case after the defendant has already been tried, convicted, sentenced, and an appeal taken? The Court and the government have expressed serious reservations about the Court's authority in this regard.³ Defendant has taken the position that the sentencing is not completed until this issue has been determined and made the subject of a formal order, either by inclusion in the Judgment & Commitment or otherwise.

Because of the unique nature of this case and the presence of important questions of international law, the Court afforded the parties an opportunity to file post-sentencing memoranda. 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.

II. APPLICABILITY OF GENEVA III

Before examining in detail the various provisions of Geneva III, the Court must address whether the treaty has any application to the case at bar. Geneva III is an international treaty designed to protect prisoners of war from inhumane treatment at the hands of their captors. Regardless of whether it is legally enforceable under the present circumstances, the treaty is undoubtedly a valid international agreement and "the law of the land" in the United States. As such, Geneva III applies to any POW captured and detained by the United States, and the U.S. government has — at minimum — an international obligation to uphold the treaty. In addition, this Court believes Geneva III is self-executing and provides General Noriega with a right of action in a U.S. court for violation of its provisions.

A. Noriega's Prisoner of War Status

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.⁴

The government's position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III.⁵ This would seem to be just the type of situation Geneva III was designed to protect against. Because of the issues presented in connection with the General's further confinement and treatment, it seems appropriate — even necessary — to address the issue of Defendant's status. Articles 2, 4, and 5 of Geneva III establish the standard for determining who is a POW. Must this determination await some kind of formal complaint by Defendant or a lawsuit presented on his behalf? In view of the issues presently raised by Defendant, the Court thinks not.

ARTICLE 2

The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party. ... (emphasis added)

The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the "hostilities" in Panama. Letter from the State Dep't to the Attorney General of the United States, Jan. 31, 1990 at 1. However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an "armed conflict" within the meaning of Article 2. Armed troops intervened in a conflict between two parties to the treaty. While the text of Article 2 itself does not define "armed conflict," the Red Cross Commentary to the Geneva Conventions of 1949⁶ states that:

Any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2.... It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4.

Commentary at 23 (footnote omitted).

In addition, the government has professed a policy of liberally interpreting Article 2:

The United States is a firm supporter of the four Geneva Conventions of 1949.... As a nation, we have a strong desire to promote respect for the laws of armed conflict and to secure maximum legal protection for captured members of the U.S. Armed Forces. Consequently, the United States has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if arguments could be made that the threshold standards for the applicability of the Conventions contained in common Article 2 are not met. In this respect, we share the views of the International Committee of the Red Cross that Article 2 of the Conventions should be construed liberally.

Letter from the State Dept. to the Attorney General of the United States, Jan. 31, 1990 at 1-2.

ARTICLE 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict....

Geneva III's definition of a POW is easily broad enough to encompass General Noriega. It is not disputed that he was the head of the PDF, and that he has "fallen into the power of the enemy." Subsection 3 of Article 4 states that captured military personnel are POWs even if they "profess allegiance to a government or an authority not recognized by the Detaining Power."

ARTICLE 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

An important issue raised by the last two words of Article 5 is, of course, what is a "competent tribunal"? Counsel for the government has suggested that, while he does not know what a competent tribunal as called for in Article 5 is, perhaps the answer lies in Article 8, which states in relevant part that "the present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers⁷ whose duty it is to safeguard the interests of the Parties to the conflict." Nowhere in this language is there any indication that one of the rights or duties of the Protecting...