As much as I admired the first President Bush, I was always suspicious of the 1989 invasion of Panama. It is highly unusual for a nation to use its armed forces as an agent of drug policy against a sovereign country. That, in large part, is why both the United Nations and the Organization of American States publicly condemned the action.While it is a fact that Noriega was demonstrably guilty of transporting cocaine and marijuana into Florida throughout the 1980s, military incursions to effect criminal warrants are incredibly unusual. Could, say, the Mexican authorities enter the United States to assassinate U.S gun dealers supplying Mexican drug cartels or return them for trial? Would the then-Sandinista government of Nicaragua have been justified in attacking CIA-sponsored Contra training camps in El Salvador? Most Americans would say no in the strongest possible terms.
As a general in the Panamanian Defense Forces and as the de facto head of state, Manuel Noriega was declared a prisoner of war upon his capture by U.S forces. That status was later reaffirmed by his trial judge in the US District Court for the Southern District of Florida in Miami. Even as a federal prisoner upon being convicted of eight drug and money laundering counts, he was treated as a prisoner of war. That's an important designation, as it goes to his treatment upon the completion of his sentence on Sunday September 9, 2007.
France had earlier convicted Noriega in absentia of money laundering and had issued an international arrest warrant for him. Panama had also found him of guilty of murder and handed down a 20 year sentence in absentia. The second Bush administration, based purely on domestic Panamanian conditions and legal traditions, determined that it would hand Noriega over to France.
Both the law and precedent were clearly on Noriega's side. The Geneva Convention of 1929 reads;
When belligerents conclude an armistice convention, they shall normally cause to be included therein provisions concerning the repatriation of prisoners of war. If it has not been possible to insert in that convention such stipulations, the belligerents shall, nevertheless, enter into communication with each other on the question as soon as possible. In any case, the repatriation of prisoners shall be effected as soon as possible after the conclusion of peace.However, upon the conclusion of the sentence, the prisoner of war must be repatriated, particularly if that prisoner's home country wants him returned.
Prisoners of war who are subject to criminal proceedings for a crime or offence at common law may, however, be detained until the end of the proceedings, and, if need be, until the expiration of the sentence. The same applies to prisoners convicted for a crime or offence at common law.
For example, after the Nazi defendants at Nuremberg completed their individual sentences, they were not extradited to Israel by the detaining powers, although Israel had claimed jurisdiction for such crimes in the Eichmann case. That would have been a violation of the Geneva Conventions.
So Noriega appealed all the way to the Supreme Court, which denied his cert writ, with Justices Thomas and Scalia dissenting (PDF). The courts ruled based on the Military Commissions Act of 2006, which had been passed 16 years after Noriega's sentencing and less than a year before his sentence had been completed. Furthermore, Noriega had been tried in U.S federal district court, not before a military commission, nor was France claiming that his crimes were military in nature.
So guess what ended up happening.
Not only is this a flagrant violation of the Geneva Conventions, it's unconstitutional under American law. It is also an expansion of the Military Commissions Act into cases that have nothing at all to do with terrorism, which the Act was expressly designed to address.
I'm sure that no one is shedding any tears for Manuel Antonio Noriega. After all, the man is a monster. It should, however, be remembered that this is about more than Noriega. This is about the United States and France doing whatever they want, despite their treaty obligations.
The U.S has hundreds of thousands of troops abroad, most of them in particularly unsavoury countries. Any one of those countries could, upon the capture of American service personnel, rewrite their domestic law to reflect the U.S position that the Geneva Conventions are not "self-executing (whatever that means) and therefore declare that they can do whatever they wish with American prisoners of war, including sending them to third, non-combatant countries. And the United States government won't be in much of a position to complain.
The Geneva Conventions weren't ratified because the United States is supposed to like Manuel Noriega, they were ratified because they reflect how the United States wants it's own soldiers treated in the event of their capture.
The Bush and Obama administrations have fundamentally violated that principle. Any subsequent American P.O.Ws are now going to be reliant entirely on the charity of their captors, rather than the norms and laws of warfare, because of it.
Frankly, I'm shocked that more attention hasn't been paid to the Noriega saga of the last few years, because the implications are so serious. The Geneva Conventions are effectively meaningless now.
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