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

• Author: Geoffrey S. Corn - Sharon G. Finegan
• Position: Associate Professor of Law, South Texas College of Law in Houston, Texas. - Associate Professor of Law, South Texas College of Law.
• Pages: 1111-1146

America’s Longest Held Prisoner of War: Lessons

Learned from the Capture, Prosecution, and

Extradition of General Manuel Noriega

Geoffrey S. Corn∗

Sharon G. Finegan∗∗

INTRODUCTION

In the fall of 1986, while serving his first tour as an Army

officer in Panama, one of the authors, Professor Corn, participated

in a large-scale field training exercise called Operation Kindle

Liberty. For three weeks he worked alongside members of the

Panamanian Defense Force (PDF) with the mission of enhancing

the capability of the Panamanian military to work side-by-side

with the U.S. military to defend the Panama Canal. At the end of

their training, as is customary, the commanding generals of both

armies came to the field to visit the troops. Then-First Lieutenant

Corn stood in an impromptu formation outside of the combined

U.S.–PDF tactical operations center as General John Galvin,

Commander of United States Southern Command, and his

Panamanian counterpart General Manuel Noriega walked down the

row of U.S. and Panamanian officers, shaking hands and

congratulating them for completing a successful exercise.

Nineteen years later, Professor Corn once again extended his

hand to General Noriega. This time, however, he did so in a

radically different context. General Noriega was a prisoner in the

Federal Correctional Facility in Miami, Florida, and Professor

Corn was the U.S. Army’s senior law of war expert advisor, in

Miami to provide expert assistance to the prison warden during

General Noriega’s annual visit by the International Committee of

the Red Cross (ICRC). As a prisoner of war (POW) protected by

the Geneva Convention Relative to the Treatment of Prisoners of

War, General Noriega was entitled to an annual ICRC inspection

visit. The warden requested assistance that year from the Army to

ensure that prison personnel clearly understood the reasons for and

actions in relation to the visit.

Copyright 2011, by GEOFFREY S. CORN & SHARON G. FINEGAN.

∗ Associate Professor of Law, South Texas College of Law in Houston,

Texas. Previously Lieutenant Colonel, U.S. Army, and Special Assistant, Law of

War Matters, to the U.S. Army Judge Advocate General. I would like to thank

Kelly Hughes for her excellent co ntributions in support of completing this Article.

∗∗ Associate Professor of Law, South Texas College of Law.

1112 LOUISIANA LAW REVIEW [Vol. 71

After meeting with a representative from the ICRC, Professor

Corn asked if he could accompany the representative to meet

General Noriega that morning. The representative kindly agreed,

and they entered General Noriega’s two-room cell. The man who

shuffled out of his sleeping cell was much different than the barrel-

chested general Professor Corn remembered meeting almost 20

years earlier. General Noriega extended his hand in welcome, and

as Professor Corn shook it, he told General Noriega that the last

time they shook hands was in 1986 in Provincia Chiriqui in

Panama. General Noriega smiled and responded that the tables had

turned: “Back then I was checking on you; now you are checking

on me.”

As Professor Corn left the prison that day, he was struck by

General Noriega’s odd journey. In a one-year period of time, he

and the army he commanded transformed from an ally of the

United States to public enemy number one1—a transformation that

exasperated General Noriega at the time and one that he will

unlikely ever fully understand. Overnight, a simmering conflict

emerged between the U.S. armed forces in Panama and General

Noriega’s PDF. From March of 1987 until the invasion in

December 1989, the U.S. military engaged in a low-level struggle

triggered by the national change in policy towards General

Noriega, a struggle that was characterized primarily by harassment

but that occasionally involved flashes of violence that almost

triggered all-out war.2 This standoff ultimately culminated in

Operation Just Cause, the U.S. invasion of Panama ordered by

President George H.W. Bush that led to the PDF’s destruction and

the capture of its commanding general.3 General Noriega was

ignominiously transported to the U.S. by military aircraft, turned

over to federal authorities, and subsequently tried and convicted in

the United States District Court for the Southern District of

Florida.4 Only recently was General Noriega released––the

commanding general of an army that no longer existed. However,

although he completed serving his sentence, General Noriega did

not regain his freedom. Instead, he was extradited to France, where

1. See Matthew Reichstein, Comment, The Extradition of General Manuel

Noriega: An Application of International Criminal and Humanitarian Law to

Answer the Question, “If So, Where Should He Go?,” 22 EMORY INT’L L. REV.

857, 857 (2008).

2. See Alan Berman, In Mitigation of Illegality: The U.S. Invasion of

Panama, 79 KY. L.J. 735, 739–43 (1991).

3. Id. at 735, 743.

4. United States v. Noriega, 117 F.3d 1206, 1210 (11th Cir. 1997).

2011] AMERICA’S LONGEST HELD POW 1113

he was tried and convicted for money laundering offenses. He is

now serving an additional seven-year sentence in a French prison. 5

General Noriega’s 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 U.S. to use its criminal law system to hold such

captives accountable for their pre-capture conduct. Ironically,

General Noriega’s saga also triggered a legal battle over the effect

of the Military Commission Act of 2009 (MCA), a law enacted by

Congress to provide for the trial by military courts of captured al-

Qaeda and Taliban personnel. In what can only be considered the

final ironic twist of fate for General Noriega, his effort to fight

extradition turned on the validity of the MCA’s provision limiting

access to judicial remedies for enemies captured in a war radically

different from the one in which General Noriega was captured—

captives who, unlike Noriega, did not even qualify for the

protections of the Prisoner of War Convention.6 Nonetheless, like

so many other legal issues related to his status as a U.S. captive,

the MCA nullified the last modicum of value General Noriega

sought to derive from his status as a prisoner of war, preventing

him from invoking that status as a barrier to his extradition.

As America’s longest-held prisoner of war, General 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

ironic that in the post-September 11 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, 20 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?

5. Maia de la Baume, France: Freedom for Noriega Rejected, N.Y. TIMES,

Dec. 16, 2010, at A8.

6. See Memorandum from George W. Bush to the Vice President et al.

(Feb. 7, 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB

127/02.02.07.pdf (establishing the U.S. determination that neither Taliban nor

al-Qaeda detainees qualify for prisoner of war status).