Noriega v. Pastrana

                                                                                  [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