America’s Longest Held Prisoner of War: Lessons Learned from the Capture, Prosecution, and Extradition of General Manuel Noriega

Abstract:     
Noriega’s odd journey through the U.S. legal system provides insight into an issue that has been consistently avoided in connection with the current “war on terror”: the consequence of granting wartime captives prisoner of war status and its impact on the ability of the United States to use its criminal law system to hold such captives accountable for their pre-capture conduct. Ironically, Noriega’s saga also triggered a legal battle over the effect of a law enacted by Congress to provide for the trial by military courts of captured al Qaeda and Taliban personnel, the Military Commission Act of 2009. In what can only be considered the final ironic twist of fate for the General, his effort to fight extradition turned on the validity of the MCA’s provision limiting access to judicial remedies for a class enemies captured in a war radically different from the one in which Noriega was captured. Nonetheless, like so many other legal issues related to his status as a U.S. captive, the MCA nullified the last modicum of value Noriega sought to derive from his status as a Prisoner of War prevented him from invoking that status as a barrier to his extradition.

As America’s longest held Prisoner of War (POW), Noriega’s capture, detention, prosecution, and ultimate extradition provide many important lessons in the balance between the protection of POWs and the flexibility afforded to detaining States to address pre-capture misconduct committed by these captives. It is therefore somewhat ironic that in the post-September 11th debates over the relative merits of extending POW status to captured al Qaeda and Taliban personnel, so little attention has been paid to the plight of General Noriega. His ouster from power, capture, trial, conviction, twenty years of incarceration, and most recent efforts to block extradition offer a fascinating insight into the intersection of national security and law, both domestic and international. What was his status upon capture? If a POW, what was the scope of his lawful immunity, and what was his status upon conviction in a domestic criminal court? How did Congress criminalize his conduct in Panama? Did an invasion to bring him to justice implicate due process concerns? Would his extradition violate the Geneva Prisoner of War Convention, and if so, what remedy did the Convention provide for the General?

Through General Noriega’s journey, this article will survey each of these legal issues and the law relied on to resolve them. The authors offer this survey in order to highlight how Noriega’s POW status never really impeded the ability of the United States to address the misconduct it sought to sanction him for. Because the authority to prosecute wartime captives is as important today as it was when the U.S. took Noriega into custody, the authors believe the lesson of Noriega’s experience deserves greater attention, because in many ways it rebuts the flawed assumption that POW status and protection of the nation from individuals who commit pre-capture misconduct directed against the national security interests of the nation are somehow incompatible. Instead, General Noriega’s legal saga will offer insight into the viability of existing law to address the challenge of such captives, even in the context of the contemporary struggle against international terrorism. While the authors do not intend to suggest that these lessons mandate reconsideration of the status of captured al Qaeda and Taliban personnel, it does indicate the fallacy of asserting that extending POW status (or perhaps only combatant immunity) to such enemy belligerents will disable the ability of the nation to address their pre-capture misconduct.

Number of Pages in PDF File: 36

Keywords: Noriega, Prisoner of War, POW, Geneva Convention, Due Process, Extradition, Extraterritorial Jurisdiction

JEL Classification: K33, K14, K10

Accepted Paper Series