The Grant of Jurisdiction in United States V. Noriega [Note]

The Grant of Jurisdiction in United States v. Noriega [Note] Item Type Article; text Authors Iafrate, Michele Werton Citation 9 Ariz. J. Int'l & Comp. L. 587 (1992) Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ) Journal Arizona Journal of International and Comparative Law Rights Copyright © The Author(s) Download date 01/10/2021 19:46:01 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version Link to Item http://hdl.handle.net/10150/659436 THE GRANT OF JURISDICTION IN UNITED STATES v. NORIEGA Michele Werton lafrate I. INTRODUCTION On February 5, 1988, United States prosecutors in Tampa and Miami, Florida announced separate indictments against Panamanian General Antonio Noriega on drug-trafficking charges.1 The Miami federal grand jury returned its twelve-count indictment charging General Noriega with participating in an international conspiracy to import cocaine into the United States, shipping and laundering drug money and paying and accepting protection money. These acts were allegedly undertaken for Noriega's personal profit.2 The three-count Tampa indictment charged Noriega with conspiracy to import and distribute marijuana into the United States. The indictments marked the antecedent to an unprecedented trial of a foreign leader, especially one with whom the United States historically had allied relations.4 In light of Noriega's history of close cooperation 1. Noriega was charged with racketeering, in violation of the RICO statutes, 18 U.S.C. § 1962(c) (1970) and 18 U.S.C. § 1962(d) (1988); conspiracy to distribute and import cocaine into the United States in violation of 21 U.S.C. § 963 (1988); distributing and aiding and abetting the distribution of cocaine, with the intent of importation into the United States, in violation of 21 U.S.C. § 959 (1986) and 18 U.S.C. § 2 (1951). Noriega was also charged with aiding and abetting the manufacturing of cocaine intended for the United States, in violation of 21 U.S.C. § 959 (1986) and 18 U.S.C. § 2 (1951); conspiring to manufacture cocaine intended to be imported into the United States, in violation of 21 U.S.C. § 963 (1988); and causing interstate travel and use of facilities in interstate commerce to promote an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3) (1984), renumbered as 18 U.S.C. § 1958 (1988), and 18 U.S.C. § 2 (1951). 2. The indictment states that Noriega protected cocaine shipments from Colombia through Panama to the United States; organized the shipment and sale to the Medellin Cartel of ether and acetone, much of which had been pre- viously seized by the Panamanian Defense Force (PDF); provided a haven of safety and base to continue operations for the members of the Medellin Cartel after the Colombian government's attempted crackdown on drug trafficking; agreed to protect a domestic cocaine facility; and promised a safe pipeline of billions of dollars of narcotic profits from the United States into Panamanian banks. 3. United States v. Noriega, No. 88-28CRT (M.D. Fla. filed Feb. 4, 1988). 4. There have been criminal cases involving former dictators. See, e.g., Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962). The Venezuelan gov- 588 Arizona Journal of Internationaland ComparativeLaw [VoL 9, No. 2 with the United States in providing information in the areas of military, intelligence and drug enforcement, relations deteriorated between the United States and General Noriega subsequent to the indictments. 5 The conflict between the Drug Enforcement Agency's once highly regarded asset and the United States government culminated on December 15, 1989, when General Noriega declared a "state of war" between Panama and the United States.6 Tensions increased when violence against American soldiers in Panama led to one United States soldier dead and three others wounded. 7 Three days later, President George Bush stated "[e]nough is enough," 8 and readied his armed forces for the ensuing battle. II. THE INVASION OF PANAMA On December 20, 1989, President Bush ordered a total of 24,000 United States troops into Panama, 10,000 of whom were combat troops.9 The stated goals of this "self defense" mission 1° were to safeguard American lives, restore democracy, preserve the Panama Canal treaties, and seize General Noriega to face federal drug charges in the United States. 11 Prior to the engagement of United States troops, American officials swore in Guillermo Endara as the "recognized" legitimate head of ernment brought charges against its former dictator. In re Grand Jury Proceedings, John Doe No. 700, 817 F.2d 1108 (4th Cir. 1987). Ferdinand Marcos, former President of the Philippines, and his wife Imelda were indicted by a federal grand jury. The Philippine government brought a RICO action against deposed president Ferdinand Marcos and his wife. Republic of Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986). 5. The United States admitted to paying Noriega approximately $320,000 for his supply of various intelligence information over the past 20 years, in- cluding his support of United States policy in Latin America. However, defense attorney Frank Rubino puts the figure closer to $11 million. Andrew Blake, Noriega Case to Begin Today, Boston Globe, Sept. 4, 1991 at Al. 6. Elaine Sciolino, Policy in Latin America: 2 Standards, N.Y. Times, Jan. 4, 1990 at A10. 7. United States v. Noriega, 746 F. Supp. 1506, 1511 (S.D. Fla. 1990). 8. Statement by the President (Dec. 19, 1989) (Office of the Press Secretary, the White House). 9. Andrew Rosenthal, U.S. Troops Gain Wide Control in Panama; New Leaders Put in, but Noriega Gets Away, N.Y. Times, Dec. 21, 1989, at Al, AS. 10. Secretary of State James A. Baker, III proffered the inherent right of self defense as a justified reason for the invasion. This right is recognized in U. N. Charter, art. 51, Charter of the Organization of American States, art. 21, and Panama Canal Treaty, Sept. 7, 1977, U.S.-Pan, art. IV. 11. James Henry, Panama: Dirty Business as Usual; Noriega is Gone, but the Drug Traffic and Corruption Live On, Wash. Post, July 28, 1991, at C1. 19921 Grant of Jurisdiction in U.S. v. Noriega the Panamanian government. 12 Endara reportedly won the democratic Panamanian presidential election held May 7, 1989, but Noriega nullified 13 its results upon the defeat of his supported candidate. Noriega eluded United States forces for 11 days by seeking refuge in the Vatican Embassy of Panama. On January 3, 1990, two weeks after the invasion on Panama began, Noriega surrendered to United States military officials. 14 Relying on the White House's stated goals,15 some 16 scholars argue the invasion was an illegal act under international law. It is questionable whether the intervention of American forces on Panamanian soil was, in fact, for the sake of humanitarian protection, the restoration of democracy and the protection of the Panama Canal Treaties. It appears the apprehension of General Noriega was the sole legitimate goal of "Operation Just Cause." The practice of asserting extraterritorial jurisdiction over persons domiciled on foreign soil subject to a United States warrant is historically accepted. However, some argue the United States confused the domestic legality of bringing Noriega before a United States court and the corresponding international legality of such an act,17 because not all means are tolerated to attain even a lawful goal. 18 12. Rosenthal, supra note 9, at A8. 13. See Peter N. Sanchez, 'The Drug War": The U.S. Military and National Security, 34 A.F. L. Rev. 109, 134 (1991). 14. Richard L. Berke, Noriega's Surrender: Overview; Noriega Arraignedin Miami in a Drug-Trafficking Case; He Refuses to Entera Plea, N.Y. Times, Jan. 5, 1990, at Al. 15. Henry, supra note 11. 16. Ved P. Nanda, Agora: U.S. Forces in Panama: Defenders,Aggressors or Human Rights Activists?, 84 Am. J. Int'l L. 494, (1990). This article argues that the stated purposes of the Panama intervention do not fall within any of the exceptions under the UN Charter art. 51, the OAS Charter art. 21 or princi- ples of customary international law prescribing the prohibition on the use of force. The UN Charter art. 51 states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." The OAS Charter art. 21 states: "The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof." But see also Anthony D'Amato, The Invasion of Panama Was a Lawful Response to Tyranny, 84 Am. J. Int'l L. 516 (1990). D'Amato submits that the invasion did not violate the territorial integrity of Panama, therefore the intent of article 2(4) of the Charter was not breached. 17. Ved Nanda et al., U.S. Forces in Panama: Defenders, Aggressors or Human Rights Activists? The Validity of United States Intervention in Panama Under InternationalLaw, 84 Am. J. Int'l L. 494 (1990). 18. The legality of the invasion is beyond the scope of this Note. For a discussion of this issue see Ved P. Nanda, U.S. Forces in Panama: Defenders, 590 Arizona Journalof Internationaland ComparativeLmv [Vol. 9, No. 2 Although General Noriega never called himself such, he has been labelled the "de facto leader of Panama." 19 Noriega was officially considered the Commnandante of the Panama Defense Forces (PDF).20 Noriega created the PDF in 1983, reconstructing the National Guard to incorporate the power of the Armed Forces, the Police, and the Traffic, Immigration, and Investigation Departments.

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