[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 08-11021 ELEVENTH CIRCUIT
APRIL 8, 2009
THOMAS K. KAHN
CLERK
D.C. Docket No. 07-22816-CV-PCH
GENERAL MANUEL ANTONIO NORIEGA,
Petitioner–Appellant,
versus
GEORGE PASTRANA,
Warden, FCI Miami,
HILLARY CLINTON,
Secretary of State
United States Department of State,
Respondents–Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(April 8, 2009)
Before DUBINA and CARNES, Circuit Judges, and RESTANI,* Judge.
*
Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
RESTANI, Judge:
Appellant General Manuel Antonio Noriega appeals the decision of the
United States District Court for the Southern District of Florida denying his
petition for writ of habeas corpus. The district court determined that the Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”),
does not foreclose the extradition of prisoners of war and that the United States
had sufficiently complied with its obligations under the Convention. We affirm
and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No.
109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006),
precludes Noriega from invoking the Geneva Convention as a source of rights in a
habeas proceeding and therefore deny Noriega’s habeas petition. We also
conclude that extradition would not violate the Convention.
BACKGROUND
In February 1988, a federal grand jury in the Southern District of Florida
indicted Noriega on drug-related conspiracy charges. In April 1992, Noriega was
convicted for RICO and RICO conspiracy (18 U.S.C. § 1962(c) and (d)),
conspiracy to import and distribute cocaine (21 U.S.C. § 963), distribution of
cocaine (21 U.S.C. § 959), manufacture of cocaine (21 U.S.C. § 959), conspiracy
2
to manufacture, distribute, and import cocaine (21 U.S.C. § 963), and unlawful
travel to promote a business enterprise involving cocaine (18 U.S.C. § 1952(a)(3)).
Noriega was sentenced to concurrent terms of twenty years’ imprisonment,
followed by concurrent terms of fifteen years’ imprisonment, a consecutive term
of five years’ imprisonment, and concurrent terms of three years’ special parole.
Noriega was designated a prisoner of war and accorded the benefits conferred on
prisoners of war by the Third Geneva Convention.1 The district court reduced
Noriega’s sentence to thirty years’ imprisonment on March 4, 1999, and Noriega
was scheduled to be released on parole on September 9, 2007.
At the request of the French government, the United States filed a complaint
on July 17, 2007, for the extradition of Noriega, pursuant to an extradition treaty
with France.2 On July 23, 2007, Noriega filed a petition in the related criminal
1
The district court determined that Noriega was a prisoner of war under the Third Geneva
Convention in response to Noriega’s concerns about the type of care he would receive while in
custody. United States v. Noriega, 808 F. Supp. 791, 793–96 (S.D. Fla. 1992) (Hoeveler, J.)
(“Noriega I”). Specifically, the district court found that the hostilities in Panama constituted an
“armed conflict” within the meaning of article 2, that Noriega was a member of the armed forces
of a party to the conflict under article 4, and that the district court was a “competent tribunal” to
determine his prisoner of war status under article 5 of the Third Geneva Convention. Id. This
determination was not appealed.
2
Noriega was convicted in absentia in France of using the proceeds of illegal drug
trafficking to engage in financial transactions. Noriega will have the opportunity to challenge
this conviction and seek a new trial upon his surrender to France.
3
case for a writ of habeas corpus under 28 U.S.C. § 2255,3 alleging that the
extradition violated his rights under the Third Geneva Convention. The district
court denied his petition on August 24, 2007, for lack of jurisdiction, finding that
because Noriega was not challenging his sentence, § 2255 did not apply. United
States v. Noriega, No. 88-0079-CR, 2007 WL 2947572, at *1 (S.D. Fla. Aug. 24,
2007) (Hoeveler, J.) (“Noriega II”). Nevertheless, because of the imminency of
the extradition hearing, Noriega’s planned release, and the expectation that
Noriega would refile the petition correctly under 28 U.S.C. § 2241,4 the district
court reviewed the petition on the merits. Id. The district court reasoned that even
if it had jurisdiction, it would still deny the petition because the United States had
satisfied its international obligations under the Third Geneva Convention. Id. at
*2–5. An extradition hearing was held on August 28, 2007, and a Certificate of
Extraditability was issued on August 29, 2007.
On September 5, 2007, in the related criminal case, Noriega filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the United
3
A prisoner’s “collateral attack[] on the validity of a federal sentence must be brought
under § 2255,” Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005), by “mov[ing] the
court which imposed the sentence to vacate, set aside or correct the sentence,” 28 U.S.C.
§ 2255(a).
4
Under 28 U.S.C. § 2241, “[w]rits of habeas corpus may be granted” to a prisoner “in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(a), (c)(3).
4
States had not complied with article 12 of the Third Geneva Convention by
satisfying itself of France’s willingness and ability to consider Noriega a prisoner
of war and apply the Convention. On September 7, 2007, the district court again
dismissed the habeas petition for lack of jurisdiction, because Noriega had failed
to file his petition in a new civil action. United States v. Noriega, No. 88-0079-
CR, 2007 WL 2947981, at *1 (S.D. Fla. Sept. 7, 2007) (Hoeveler, J.) (“Noriega
III”). The district court intimated that it still would have denied the petition on the
merits, because the United States had demonstrated that upon extradition Noriega
would be afforded the same benefits he enjoyed in the United States. Id.
Noriega filed the habeas petition that is before us on October 26, 2007. On
January 14, 2008, the district court adopted the findings of fact, legal analysis, and
conclusions of law set forth in the August 24, 2007, and September 7, 2007, orders
and denied the petition. United States v. Noriega, No. 07-CV-22816-PCH, slip op.
at 6–7 (S.D. Fla. Jan. 14, 2008) (Huck, J.) (“Noriega IV”). The district court
concluded that the Third Geneva Convention did not bar Noriega’s extradition to
France. Noriega now appeals.5
5
On October 5, 2007, this Court dismissed for want of prosecution Noriega’s appeal of
the September 7, 2007 order denying his § 2241 habeas petition. On February 11, 2008, we
granted Noriega’s voluntary dismissal of his appeal of the August 24, 2007 order denying his
§ 2255 habeas petition.
5
JURISDICTION
Noriega is in federal custody and has sought habeas corpus relief under 28
U.S.C. § 2241 to challenge his extradition. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253 to review a final order in a habeas proceeding and can therefore
decide whether any law prevents Noriega’s extradition.
The issues present in Boumediene v. Bush, __ U.S. __, 128 S. Ct. 2229
(2008), concerning the constitutionality of § 7 of the MCA, are not presented by
§ 5 of the MCA, the provision at issue here, as the parties concede. In
Boumediene, the Supreme Court found § 7 of the MCA, which explicitly removed
the jurisdiction of courts to consider habeas actions by enemy combatants, to be
unconstitutional. Id. at 2242–44, 2275. The Court determined that the petitioners
could not be prevented from seeking the writ because of their status as enemy
combatants or detention in Guantanamo Bay, and therefore they were entitled to
the constitutional privilege of habeas corpus. Id. at 2262. The Court further held
that the procedures for reviewing the status of a detainee under the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, Div. A, Tit. X, § 1005, 119 Stat
2680, 2740–44, note following 10 U.S.C. § 801 (2005 ed., Supp. V), were not an
adequate and effective substitute for the habeas writ. Id. at 2274. Section 5, in
contrast, as discussed more fully, infra, at most changes one substantive provision
6
of law upon which a party might rely in seeking habeas relief. We are not
presented with a situation in which potential petitioners are effectively banned
from seeking habeas relief because any constitutional rights or claims are made
unavailable.
STANDARD OF REVIEW
On review of a denial of a habeas petition regarding the issuance of a
certification of extraditability, we review factual findings for clear error and
questions of law de novo. Kastnerova v. United States, 365 F.3d 980, 984 (11th
Cir. 2004).
DISCUSSION
I. Extradition Principles
Extradition is an executive function derived from the President’s power to
conduct foreign affairs, and the judiciary historically has played a limited role in
extradition proceedings. Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 & n.6
(11th Cir. 1993); see also Terlinden v. Ames, 184 U.S. 270, 288 (1902) (“[T]he
question whether power remains in a foreign state to carry out its treaty
obligations is in its nature political and not judicial, and . . . the courts ought not
. . . interfere with the conclusions of the political department in that regard.”).
The United States’ authority to extradite Noriega comes from the United
7
States’ extradition treaty with France. The federal extradition statute generally
permits extradition when based on a treaty or convention. See 18 U.S.C. § 3184.
Article 1 of the extradition treaty between the United States and France, entitled
“Obligation to Extradite,” states that “[t]he Contracting States agree to extradite to
each other, pursuant to the provisions of this Treaty, persons whom the competent
authorities in the Requesting State have charged with or found guilty of an
extraditable offense.” Extradition Treaty, U.S.-Fr., art. 1, Apr. 23, 1996, S. Treaty
Doc. No. 105-13 (2002). The treaty further defines an extraditable offense as one
“punished under the laws in both States by deprivation of liberty for a maximum
of at least one year or by a more severe penalty.” Id. at art. 2(1). The offense of
which Noriega has been convicted in absentia in France, which corresponds to
money laundering in the United States, undoubtedly falls within the purview of the
treaty.6
There is no right to appeal extradition certification determinations, see
Kastnerova, 365 F.3d at 984 n.4, and collateral review of an extradition
determination by means of a petition for writ of habeas corpus is generally limited
6
Noriega was charged with violations under French law of engaging in financial
transactions with the proceeds of illegal drug trafficking, in violation of section 415 of the French
Customs Code (Law 88-1149 of December 23, 1998, promulgated on December 28, 1988).
Money laundering is a felony punishable in the United States by up to twenty years’
imprisonment. See 18 U.S.C. § 1956(a). The parties do not dispute the applicability of the
Extradition Treaty to either provision.
8
“to determining ‘whether the magistrate had jurisdiction, whether the offense
charged is within the treaty and, . . . whether there was any evidence warranting
the finding that there was reasonable ground to believe the accused guilty.’”
Martin, 993 F.2d at 828 (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)).
The issue of whether the treaty of extradition has no force because another treaty
or law prevents its operation is no less a fundamental one than is treaty coverage
of the offense charged, and is within the class of reviewable challenges to
extradition. See, e.g., Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir.
2002) (noting that despite the court’s “limited role in extradition proceedings, the
judiciary must ensure that the constitutional rights of individuals subject to
extradition are observed”); Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994)
(concluding that the court was still required to interpret a provision of the
applicable extradition treaty regardless of the limited scope of habeas corpus
review in extradition proceedings); Ahmad v. Wigen, 910 F.2d 1063, 1064–65 (2d
Cir. 1990) (adhering to the limited role of habeas corpus in extradition
proceedings but still considering whether the government’s conduct violated the
Constitution or established principles of international law). Noriega has failed to
assert any applicable law which would prevent his extradition to France under the
Extradition Treaty.
9
We find it unnecessary to resolve the question of whether the Geneva
Conventions are self-executing,7 because it is within Congress’ power to change
domestic law, even if the law originally arose from a self-executing treaty. See
Medellin, 128 S. Ct. at 1359 n.5 (“Whether or not the United States ‘undertakes’
to comply with a treaty says nothing about what laws it may enact. The United
States is always ‘at liberty to make . . . such laws as [it] think[s] proper.’” (quoting
Todok v. Union State Bank of Harvard, Neb., 281 U.S. 449, 453 (1930))). That is,
because “‘an Act of Congress . . . is on a full parity with a treaty, . . . when a
statute which is subsequent in time is inconsistent with a treaty, the statute to the
7
By “self-executing,” we mean “that the treaty has automatic domestic effect as federal
law upon ratification.” Medellin v. Texas, __ U.S. __, 128 S. Ct. 1346, 1356 n.2 (2008). In
Johnson v. Eisentrager, 339 U.S. 763 (1950), the Supreme Court appeared wary of finding the
1929 Convention—the predecessor to the 1949 Conventions—self executing:
It is . . . the obvious scheme of the Agreement that responsibility for observance
and enforcement of these rights is upon political and military authorities. Rights
of alien enemies are vindicated under it only through protests and intervention of
protecting powers as the rights of our citizens against foreign governments are
vindicated only by Presidential intervention.
Id. at 789 n.14. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), however, the Court referred to
this footnote as a “curious statement suggesting that the Court lacked power even to consider the
merits of the Geneva Convention argument.” Id. at 627. In discussing the adequacy of military
commissions the Court did not resolve the issue of whether the Geneva Conventions were self-
executing, but rather, found that even if the scheme of the Geneva Conventions “would, absent
some other provision of law, preclude [the] invocation of the Convention’s provisions as an
independent source of law binding the Government’s actions and furnishing petitioner with any
enforceable right,” the rights at issue were “part of the law of war” and made applicable by
statute. Id. at 627–28.
10
extent of conflict renders the treaty null.’” Breard v. Greene, 523 U.S. 371, 376
(1998) (quoting Reid v. Covert, 354 U.S. 1, 18 (1957)) (finding that petitioner’s
claim for relief based on violations of the Vienna Convention on Consular
Relations was subject to later enacted Antiterrorism and Effective Death Penalty
Act); see also Medellin, 128 S. Ct. at 1359 n.5 (“Indeed, a later-in-time federal
statute supersedes inconsistent treaty provisions.”). Thus, as discussed below,
while the United States’ international obligations under the Geneva Conventions
are not altered by the enactment of § 5 of the MCA, Congress has superseded
whatever domestic effect the Geneva Conventions may have had in actions such as
this.
II. Section 5 of the Military Commissions Act
The parties’ dispute centers on the extent to which § 5 removes an
individual’s ability to invoke the Conventions in a civil action against the United
States, including a habeas proceeding. Section 5 of the MCA 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.
MCA, § 5(a).
Noriega maintains that while under § 5 he cannot invoke the Third Geneva
11
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.”). The Government maintains that
§ 5(a) of the MCA precludes invocation of the Third Geneva Convention in this
proceeding, as § 5(a) “codified the principle that the Geneva Conventions [are] not
judicially enforceable by private parties,” and that regardless, the Third Geneva
Convention authorizes his continued detention pending his extradition for criminal
proceedings in France. (Appellees’ Br. 14 n.6, 15.)
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
12
action.8 The district court appears to have read § 5 similarly, noting that § 5
“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,
8
The title of § 5, “Treaty Obligations Not Establishing Grounds for Certain Claims,”
indicates that the section clarifies or changes the domestic effect of the Geneva Conventions.
13
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.
III. The Third Geneva Convention
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.
Articles 118 and 119 of the Third Geneva Convention set forth the
permissible duration for the detention of prisoners of war. Article 118 provides, in
14
pertinent part, that “[p]risoners of war shall be released and repatriated without
delay after the cessation of active hostilities.” Third Geneva Convention art. 118.
Article 119 further qualifies that “[p]risoners of war against whom criminal
proceedings for an indictable offence are pending may be detained until the end of
such proceedings, and, if necessary, until the completion of the punishment. The
same shall apply to prisoners of war already convicted for an indictable offence.”
Id. at art. 119. As a result of Noriega’s conviction in the United States, article 119
authorized the United States to prolong his detention for the duration of his
sentence—beyond the cessation of hostilities between the United States and
Panama. Nowhere, however, is it suggested that a prisoner of war may not be
extradited from one party to the Convention to face criminal charges in another.
Nor do the stated purposes of articles 118 and 119, as reflected by their
commentary, preclude detention in these circumstances: article 118 is intended to
prohibit “prolong[ed] war captivity,” while article 119 unambiguously reflects the
intention of the drafters to permit detention of prisoners of war subject to criminal
proceedings. 3 Int’l Comm. of Red Cross, Commentary: Geneva Convention
Relative to the Treatment of Prisoners of War 541, 556 (J. Pictet ed. 1960).
Article 12 further supports the principle that repatriation is not automatic.
Article 12 provides that “[p]risoners of war may only be transferred by the
15
Detaining Power to a Power which is a party to the Convention and after the
Detaining Power has satisfied itself of the willingness and ability of such
transferee Power to apply the Convention.” Third Geneva Convention art. 12. As
France and the United States are both parties to the Third Geneva Convention, and
“the United States sought and obtained from the Republic of France specific
information regarding all of the rights that the defendant will be guaranteed by
France upon his extradition,” Noriega III, 2007 WL 2947981, at *1, these
conditions have been satisfied.9 The text of article 12 imposes no further
limitations on the ability to extradite prisoners of war, and nothing in article 12
implies that a contracting party cannot abide by a valid extradition treaty and
extradite a prisoner of war to another contracting party simply because the person
is a prisoner of war.
Noriega maintains, however, that the omission of the term “extradition” in
article 12 demonstrates that extradition is not permitted under the article, and that
the district court erred in looking to article 45 of the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.
9
The United States did not ask France to declare Noriega a prisoner of war because of the
risk that France would interpret the Geneva Conventions differently from the interpretation of the
United States. Id. Instead, the United States confirmed that France would afford Noriega the
same benefits he has enjoyed during his confinement in the United States. Id.
16
3516, 75 U.N.T.S. 287 (“Fourth Geneva Convention”), to define the term
“transfer” as used in article 12 of the Third Geneva Convention. While article 12
of the Third Geneva Convention is silent as to extradition, article 45 of the Fourth
Geneva Convention, which parallels article 12 and provides for the transfer of
civilians between parties to the Convention, specifically notes that nothing in this
article “constitute[s] an obstacle to the extradition, in pursuance of extradition
treaties concluded before the outbreak of hostilities, of protected persons accused
of offences against ordinary criminal law.” Fourth Geneva Convention art. 45.
The district court noted the commentary’s definition of the term “transfer” as used
in article 45 as “internment in the territory of another Power, repatriation, the
returning of protected persons to their country of residence or their extradition.”
Noriega II, 2007 WL 2947572, at *2 (quoting 4 Int’l Comm. of Red Cross,
Commentary: Geneva Convention Relative to the Protection of Civilian Persons in
Time of War 266 (J. Pictet ed. 1958)). We agree with the district court that while
the purposes behind the Third and Fourth Geneva Conventions may be different, it
is still “compelling that the convening parties expressed an understanding of the
term ‘transfer’ which included extradition.” Noriega II, 2007 WL 2947572, at *2.
To conclude otherwise would mean that a country would be obligated to extradite
a civilian, but not a prisoner of war, when they are facing identical criminal
17
charges. We are hesitant to imply such an inconsistent result, particularly when
both articles permit the transfer of prisoners of war or civilians under the same
limited restraints.10
Accordingly, should any doubt exist as to the principal holding here,
Noriega’s habeas petition would also be denied because extradition would not
violate Noriega’s rights under the Third Geneva Convention.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
10
Further, nothing in the Convention indicates that by obligating contracting parties to
prosecute or extradite war criminals under article 129, contracting parties cannot also comply
with their preexisting obligations to extradite individuals accused of other criminal charges under
valid extradition treaties with other countries. See Third Geneva Convention art. 129. As
Noriega is not alleged to have committed grave breaches of the Third Geneva Convention, article
129 is inapplicable here.
18