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

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 previously 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, including 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 principles 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. Despite his official position with the PDF, in his motion to dismiss for lack of jurisdiction, Noriega argued he was the head of state and thus entitled to head-of-state immunity. 2 1 The United States District Court held the leader of the Panamanian armed forces was not the country's president, was not acting on behalf of the state, and was not a diplomat under the Panamanian Constitution or laws. The district court therefore denied General Noriega head-of-state immunity.22 Noriega also claimed he was a Prisoner of War (POW) and thus entitled to protections of the Geneva Convention, 23 which he stated should preclude his trial for crimes committed or charges brought before the United States invasion.24 The court granted Noriega some POW privileges, but denied the motion to dismiss for the crimes committed prior to the invasion, indicating the Geneva Convention did not divest the district court of jurisdiction in this case.25 Despite the many labels with which Noriega has been tagged, the United States government has held fast to its determination that, without formal recognition as the head of the Panamanian government, 26 Noriega should receive the same treatment as any other alien outside the United States territory subject to a warrant of the United States. In response to the jurisdiction question, the court afforded General Noriega no special privileges as a national or foreign leader, thus treating him as a common

Aggressors or Human Rights Activists?. 84 Am. J.Int'l L. 494, (1990); Anthony D'Amato, The Invasion of Panama Was a Lawful Response to Tyranny, 84 Am. J.Int'l L. 516 (1990); and Tom J.Farer, Panama: Beyond the Charter Paradigm, 84 Am.J. Int'l L. 503 (1990). 19. Mark Andrew Sherman, law professor at Catholic University, citing the U.S. position on Ferdinand Marcos said, "[S]imply put, General Noriega is the de facto leader of Panama, and as such has been since 1983 at the helm of a government with which the United States has openly conducted diplomatic relations." Richard L. Fricker, Dealing With the Maximum Leader, 76 A.B.A. J., Apr. 1990, at 54, 56. 20. Noriega combined the National Guard, some military and police forces, along with other governmental departments to create the PDF. Connie Bruck, How Noriega Got Caught and Got Away, 10 Am. L. Rev. 34 (1988). 21. United States v. Noriega, 746 F. Supp. 1506, 1519 (S. D. Fla. 1990). 22. Id. 23. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 3 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135. 24. Fricker, supra note 19, at 57. 25. Noriega, 746 F. Supp. at 1526. 26. See infra notes 144-55 and accompanying text. 19921 Grant of Jurisdictionin U.S. v. Noriega

But Noriega and his case are far from common. This case is the first 28 one the United States has prosecuted against an entrenched dictator. Furthermore, the Panamanian constitution, 29 Panamanian statutory law,30 and an extradition treaty with the United States prohibiting the extradition of Panamanian nationals31 appear to have been disregarded in the constitutional analysis of this unprecedented invasion for 'Justice." This Note addresses whether the United States courts have jurisdiction to try General Noriega as a "common" criminal, as a foreign leader or as a Prisoner of War. Despite the questionable legality of the United States invasion under international law, the United States District Court in Miami granted the extraterritorial jurisdiction in United States v. Noriega32 necessary to remedy the government's grievances against Noriega. The caveat to this grant of jurisdiction is that it may lead foreign countries to use this new tool of extraterritorial jurisdiction against United States officials and citizens in foreign court forums.

IH. JURISDICTION OVER, THE OFFENSE

Aside from General Noriega's claim to immunity, the first question requiring analysis is whether the United States may exercise jurisdiction over Noriega's alleged criminal activities. The indictments charge Noriega with acts he performed solely in Panama.3 3 The only acts occurring within the United States were the shipments and flights of cocaine from Panama to Miami in which Noriega did not participate directly.

27. "Recognition of foreign governments and their leaders is a discretionary foreign policy decision committed to the Executive Branch and thus conclusive upon the courts." Noriega, 746 F. Supp. at 1519, relying on Republic of Panama v. Air Panama, 745 F. Supp. 669 (S.D. Fla. 1988)(Executive Branch recognized President Delvalle and not General Noriega as the Panamanian head of state). 28. There have been criminal cases involving former dictators. See, e.g., Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962) and United States v. Marcos, No. 87 Cr. 598 (S.D. N.Y. 1989). 29. "The State may not extradite its nationals ... for political offenses." Pan. Const. art. 24. 30. Pan. Crim. P. Code art. 2508(1); Law No. 23 art. 30(1) governs the extradition of those charged with drug-related offenses. 31. "Neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Treaty." Treaty Providing for the Extradition of Criminals, May 25, 1904, U.S.-Pan., art. 5, 34 Stat. 2851, T.S. No. 445 [hereinafter Treaty]. 32. Noriega, 746 F. Supp. 1526 (1990). 33. See supra notes 1-3 and accompanying text. 592 Arizona Journalof Internationaland Comparative Law [VoL 9, No. 2

The United States has the ability to attach criminal consequences to acts occurring outside the country which produce effects within the United States.34 By focusing on the effects of the conduct, the determination of proper jurisdiction may be traced to Justice Holmes's statement in Strassheim v. Daily35 that, "[a]cts done outside a jurisdiction, but intended to produce or producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power." 36 This extraterritorial jurisdiction expands to permit jurisdiction upon a mere showing of intent to produce effects in this country.37 The showing of mere intent to affect the United States is frequently the jurisdictional basis for cases in the War on Drugs. The act of importing drugs or the effects resulting from drug trafficking in the United States need not be proven. To support jurisdiction over the offense, mere intent to import 38 drugs within the United States borders suffices. The indictments charged Noriega with conspiracy to import cocaine into the United States.39 All of Noriega's activities contributing to the alleged conspiracy were performed in Panama, leaving the contacts directly with the United States to his co-conspirators. 4 0 As a result of this alleged conspiracy, more than 2,000 pounds of cocaine were illegally imported into Miami.41 Theoretically, Noriega's mere intent to import cocaine is sufficient to justify jurisdiction. However, the enormous effects on the United States resulting from the importation of vast amounts of drugs by Noriega and his co-conspirators42 is additional support in favor of jurisdiction.

34. See Restatement (Third) of Foreign Relations § 402 cmt. d (1986). 35. 221 U.S. 280 (1911). 36. Strassheim, 221 U.S. at 285. 37. See U.S. v. Wright-Barker, 784 F.2d 161, 168 (3d Cir. 1986). 38. "Even if no overt acts or effects occurred within the territorial borders, the object of the alleged conspiracy was to import cocaine into the United States and therefore an intent to produce effects is present," Noriega, 746 F. Supp. at 1514. 39. See supra notes 1-3. 40. The indictments charged that General Noriega protected cocaine shipments from Colombia through Panama to the United States; arranged for the transshipment and sale to the Medellin Cartel of ether and acetone, including such chemicals previously seized by the Panamanian Defense Forces; provided refuge and a base for continued operations for the members of the Medellin Cartel after the Colombian government's crackdown on drug traffickers following the murder of the Colombian Minister of Justice, Rodrigo Lara-Bonilla; agreed to protect a cocaine laboratory in Darien Province, Panama; and assured the safe passage of millions of dollars of narcotic proceeds from the United States into Panamanian banks. Noriega, 746 F. Supp. at 1510. 41. Noriega, 746 F. Supp. at 1514. 42. Id. 19921 Grant of Jurisdiction in U.S. v. Noriega

It may be argued that because the United States invasion was unlawful, the court should preclude jurisdiction of Noriega as a fruit of this unlawful conduct.43 Nevertheless, historically the courts have permitted jurisdiction over a forcibly-abducted person. 44

IV. JURISDICTION OVER THE PERSON

A. Norieea's Rise to Power

General Omar Torrijos led a successful 1968 coup d'etat in Panama, which resulted in the overthrow of President Arnulfo Arias Madrid. Until Torrijos attained power, Panama was a business republic. Civilian presidents, usually sponsored by the previous incumbent, followed one another in and out of office.45 But instead of replacing the overthrown civilian government with another civilian leader, Torrijos remained in power, using his reputation as a strong military leader. The following year, Torrijos declared a "temporary" moratorium on organized political activity and eliminated political parties until the legislative body could reform the electoral code and restructure the party system. 46 While Torrijos was in power, no elections were held until 1972 when a fraudulent election was held and later disregarded. Torrijos furthered his stronghold on Panama through constitutional changes which granted him extraordinary executive powers and encouraged his military rule.47 The "Transitory Provisions" under the new Title 13 gave Torrijos his authority as head of government.48 Under the leadership of General Omar Torrijos, Manuel Antonio Noriega began his rise to power in the early 1970s as head of the intelligence branch of the Guardia Nacional de Panama (National Guard). 49 Noriega's relationship with the United States Central

43. See infra Section lIH(A)(1). 44. E.g., Ker v. Illinois, 119 U.S. 436, 444 (1886). 45. John Dinges, Our Man in Panama: How General Noriega Used the United States 40 (1990). 46. Gale Research Company, Countries of the World Yearbook 1987 940- 949 (1987). '47. See Pan. Const. art. 277 (1972). 48. "A new constitution was written, proclaiming that: 'Brigadier General Omar Torrijos Herrera, commander in chief of the National Guard, is recognized as Maximum Leader of the Panamanian Revolution. The constitution created a subservient Assembly of Municipal Representatives that met one month a year to rubber-stamp Torrijos's programs." Dinges, supra note 45, at 50. 49. Id. 594 Arizona Journal of Internationaland Comparative Law [VoL 9, No. 2

Intelligence Agency (CIA) and the Defense Intelligence Agency (DIA) originated while he headed the intelligence branch (G-2) from 1970 to 1983.50 During this period, Noriega developed a close-working relationship with General Torrijos and had continual access to intelligence information.51 Noriega placed himself in a position to succeed Torrijos, which he ultimately achieved upon Torrijos' death in a 1981 helicopter 52 crash. In 1983, Noriega assumed control of the Panama Defense5 3 Forces, placing himself in a position of control over all of Panama. Popular vote, presidential elections and amendments to the 1972 constitution were a feigned attempt at democracy by Noriega,54 which he later ignored to maintain his control. When Noriega's forces resorted to fraud, they denied three-time President Amulfo Arias his fourth term in the 1984 elections. Noriega installed businessman Eric Arturo Delvalle as president in 1985 and then removed him in 1988 when Delvalle did not support Noriega's military-based government. The United States recognized Delvalle as Panama's sole legitimate leader between March 1988 and September 1989. The 1989 invasion of Panama led to the installation of Guillermo Endara, a follower of the late Arnulfo Arias, as Panama's new president.55 Endara reportedly won the Panamanian presidential election held May 7, 1989, the results of which General Noriega nullified and disregarded. Even though Noriega was not an elected official, as the commander of the armed forces, the General maintained 5 6 control under the Panamanian military structure that Torrijos initiated. 5 7 In effect, whoever had control of the guns had control of Panama. Those unwilling to cooperate with the program were arrested or silenced. Noriega assumed command of the Guardia, using his position as a stronghold on the nation as well as a facade for a wide range of criminal activities.

50. Id. 51. Arias Calderon, Panama: Disasteror Democracy, 66 Foreign Aff. 328, 332 (Winter 1987, 1988). 52. See W. Jordan, Panama Odyssey (1984). 53. Calderon, supra note 51, at 333. 54. The 1983 revisions attempted to reinstate the democratic powers and separation of powers originated by the 1946 Constitution that were eliminated by the 1972 provisions. 55. See Dinges, supra note 45. 56. Mark A. Sherman, An Inquiry Regarding the International and Domestic Legal Problems Presented in United States v. Noriega, 20 U. Miami Inter-Am. L. Rev. 393 (1989). 57. See Dinges, supra note 45. 19921 Grant of Jurisdiction in U.S. v. Noriega

B. Noriega as a Common Criminal

1, The Ker-Frisbie Doctrine

The fourth amendment of the United States Constitution protects "[tihe right of the people to be secure in their persons . . . against unreasonable... seizures." 5 8 The fifth amendment provides that "[n]o person shall be... deprived of... liberty... without due process of law." 5 9 International law demands that a state be redressed for the invasion of its sovereignty when another state abducts a person on the former's territory without authority. 6 0 However, for over one hundred years, the courts have permitted jurisdiction over an alleged criminal forcibly abducted from a foreign state.6 1 As early as 1886, in Ker v. Illinois,62 the United States Supreme Court found no violation of due process if a person is forcibly brought to trial. In Ker the Illinois court indicted the defendant on charges of larceny and embezzlement while Ker lived in Peru. A warrant for extradition of the United States citizen living in Peru was granted under the existing United States-Peru treaty. 63 The United States agent travelling to Peru had the appropriate extradition documents in his possession; however, he could not locate the proper Peruvian officials to serve them. The agent nevertheless "forcibly and with violence" arrested Ker and brought him back to Illinois.6 4 The Court held that "for mere irregularities in the manner in which he may be brought into the custody of the law, we do

58. U.S. Const. amend. IV. 59. Id. amend. V. 60. "Abduction is clearly an illegal act by the municipal law of the place where it occurs and by international law." I. Shearer, Extradition in International Law 72 (1971). 61. Ker v. Illinois, 119 U.S. 436 (1886). The Court held that "mere irregularities" in taking a defendant into custody do not violate the due process clause as long as the defendant is indicted properly and receives a fair trial. The leading authority for the violation of customary international law by the United States government while bringing a criminal to trial appears as dictum: "There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court." Id. at 444. See also Frisbie v. Collins, 342 U.S. 519 (1952). 62. 119 U.S. 436 (1886). 63. Id. at 438. 64. Id. at 438-39. 596 Arizona Journalof Internationaland ComparativeLaw [Vol. 9, No. 2 not think he is entitled to say that he should not be tried at all for the crime with which he is charged in a regular indictment." 65 Sixty years later Frisbie v. Collins66 affirmed Ker. In Frisbie the Court held: "There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."67 Unlike the abduction from a foreign country in Ker, in Frisbie the Court focused on the alleged illegal seizure of the defendant from one state to another. The defendant alleged that while living in Chicago, Michigan police officers forcibly abducted and transported him across the state line without using proper interstate extradition procedures. The Court denied the defendant's claim, which was based on violations of the Federal Kidnapping Act,68 affirming the holding in Ker that a forcible abduction does not preclude jurisdiction. 69 With few exceptions, United States courts have adhered to the doctrine of mala captus bene detentus generated by the holdings in Ker and Frisbie.70 In essence, the doctrine states that an illegal apprehension does not precludejurisdiction over the defendant.71 Some criticize this doctrine because it has been applied much more broadly than anticipated by the Illinois court, which, in Ker, granted jurisdiction over a United States citizen who lived abroad. 72 The original intent of the Ker-Frisbiedoctrine did not authorize jurisdiction when the United States government kidnaps a foreigner from his home country. Cases deviating from the precedent set by Ker present little or no obstacle for the grant ofjurisdiction in subsequent cases. For example, in United States v. Toscanino,73 the Court of Appeals for the Second Circuit held that the court should divest itself of jurisdiction on due

65. Id. at 440. The rationale for the Court's permissive attitude in this case is twofold. The Court held that Ker's abduction did nothing to enhance the state's case at trial. Furthermore, Ker could not assert a due process claim on the grounds of an extradition violation because the treaty was never invoked because the extradition papers remained in the official's pocket. Id. at 440-43. 66. 342 U.S. 519 (1952). 67. Id. at 522. 68. Act of June 22, 1932, ch. 271, 47 Stat. 326 (1932)(codified as amended at 18 U.S.C. § 1201 (1988)). 69. Frisbie, 342 U.S. at 519. 70. Recent cases affirming the Ker-Frisbie doctrine include INS v. Lopez- Mendoza, 468 U.S. 1032 (1984)("The [body] ... is never itself suppressible as a fruit of unlawful arrest... ."). Id. at 1032; See also United States v. Crews, 445 U.S. 463 (1980). 71. Andrew B. Campbell, The Ker-Frisbie Doctrine: A Jurisdictional Weapon in the War on Drugs, 23 Vand. J. Transnat'l L. 385 (1990). 72. See Edwin D. Dickinson, Jurisdiction Following Seizure or Arrest in Violation of InternationalLaw, 28 Am. J.Int'l. L. 231 (1934). 73. 500 F.2d 267 (2d Cir. 1974). 19921 Grant of Jurisdictionin U.S. v. Noriega

process grounds because of government involvement in physically torturing the defendant. In Toscanino, the defendant and four others were indicted for a conspiracy to import cocaine into the United States. 4 The defendant challenged the jurisdiction of the trial court, claiming he was tortured during interrogation, denied food and water, beaten, had alcohol forced into his eyes and nose, and electrical shocks administered to his ears, toes and genitals in the presence of United States government officials.7 5 This behavior was called "too shocking to the conscience" for the court of appeals to ignore. 6 Although it appeared Toscanino was to be the origin for the gradual "erosion of Frisbie,"77 many courts have treated the Toscanino challenge to the Ker-Frisbie doctrine as dicta while other courts have rejected the Toscanino analysis altogether. 8 Therefore, United States federal district and appellate courts uphold jurisdiction regularly, citing the Ker-Frisbie doctrine as supporting authority, and distinguishing Toscanino on its facts.79 In subsequent cases, the Toscanino exception has been so narrowly interpreted that, to date, no 80 court has denied jurisdiction using its analysis. The Ker-Frisbie doctrine lends constitutional validity to the recent executive expansion of government authority to "snatch" foreign defendants. 81 On June 21, 1989, the Justice Department issued a legal

74. Id. at 268. 75. Id. at 270. 76. See Rochin v. California, 342 U.S. 165 (1952). 77. Toscanino, 500 F.2d at 273. 78. See, eg., Matta-Ballesteros v. Henman, 896 F.2d 255 (7th Cir. 1990). The court held that the alleged illegality of the defendant's arrest in Honduras and his torture while being brought to the United States did not preclude his prosecution. 79. The Toscanino court denied the government power to exploit its own illegal conduct (the unlawful seizure); however, the court distinguished Ker and Frisbie on the basis that, although the abduction of Toscanino from Uruguay did not violate the extradition treaty between the United States and Uruguay, the kidnapping violated two other international treaties--the United Nations Charter and the Organization of American States Charter--which require the United States to respect the territorial sovereignty of Uruguay. "Since the United States thus agreed not to seize persons residing within territorial limits of Uruguay, appellant's allegations in this case are governed not by Ker but by ...Cook v. United States." Toscanino, 500 F.2d at 276-78. 80. To date, the Fifth, Seventh, and Eleventh Circuits have expressly rejected Toscanino. See Matta-Ballesteros v. Henman, 896 F.2d 255 (7th Cir. 1990)(motion to dismiss denied); United States v. Darby, 744 F.2d 1508 (11th Cir. 1984), cert. denied, 471 U.S. 1100 (1985); United States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S. 825 (1975). 81. Richard Downing, The Domestic and InternationalLegal Implications of the Abduction of Criminals from Foreign Soil, 26 Stan. J.Int'l L. 573 (1990). 598 Arizona Journal of Internationaland ComparativeLmv [VoL 9, No. 2

opinion on the increased scope of enforcement jurisdiction of the Federal Bureau of Investigations which authorizes agents to travel to foreign soil, abduct foreign nationals subject to outstanding arrest warrants, and bring them to the United States for trial. Consent of the foreign government is not a required step for this international rendition.82 On the one hand, this new policy appears to subvert the incentive to generate the extradition of criminals through regular channels such as treaties. Conversely, this permissiveness allows the arrest of fugitives, including drug traffickers, who might otherwise have avoided arrest in the absence of an extradition treaty.

2. Extradition Treaties aq Controlling Authority

The Ker-Frisbie doctrine gives authority to the abduction and trial of Noriega. However, there are alternatives which the defense may offer as to why the court lacks jurisdiction over General Noriega. Precedent indicates that Ker does not apply when "a treaty of the United States is directly involved." 83 In Ford v. United States,84 a treaty granted the United States the right to seize British vessels in certain areas beyond territorial waters to adjudicate claims against the crews for violation of the United States prohibition against importing liquor. Ford and others were indicted for conspiracy to import liquor into the United States in violation of the Tariff Act of 1922 and the treaty. The defendant's objection to the seizure outside territorial waters was determined by the treaty directly involved. Ker v. Illinois did not apply here to grant jurisdiction. 85 International law does not require the surrender of a citizen or alien fugitive to a foreign government in the absence of a treaty stipulation requiring it.86 The right of a nation to demand from another an alleged fugitive from justice, and the correlative duty to surrender the fugitive from the demanding country, exists only where created by a treaty between the two countries. 87 In the controlling extradition treaty between the United States and Panama, the two countries agreed, "to deliver up persons

82. Hearings before the Subconun. on Civil and ConstitutionalRights of the House Comm. on the Judiciary, 101st Cong. 1st Sess. 3 (1989)(Statement by William Barr, U.S. Assistant Attorney General). Barr gave another statement in November 1989 that validated foreign law enforcement activities by U.S. military forces. S.F. Chron. Dec. 21, 1989, at A21. 83. Ford v. United States, 273 U.S. 593, 600 (1927). However, Ford's ap- peal arguing lack of jurisdiction failed because the challenge was not timely. Id. 84. Id. 85. Id. at 605. 86. Factor v. Laubeheimer, 290 U.S. 276 (1933). 87. Holmes v. Jennison, 39 U.S. 540 (1840). 1992] Grant of Jurisdictionin U.S. v. Noriega who, having been charged with or convicted of any of the crimes and offenses specified in the following article, committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other .... "88 This contract calls for the delivering of fugitives for specific crimes listed within the treaty; however, drug trafficking is not one of the crimes 8 9 and offenses listed for which governments will grant extradition. Although this treaty appears to expand the two nations' prosecutorial reach, the treaty limits the jurisdictional reach when the fugitive is harbored in his home nation. The treaty states that "[n]either of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Treaty." 90 Therefore, this extradition treaty serves as a territorial limitation on the expansive reach 9 1 ofjurisdiction provided by the Ker-Frisbiedoctrine. The court denied jurisdiction in two cases involving violations of a similar United States-Panama treaty.9 2 Therefore, when a treaty is involved, courts have held that their specific jurisdictional provisions override any rights recognized in Ker and related case law.93 Otherwise, the establishment of detailed safeguards specified in the extradition treaty would be useless.9 4

88. Treaty, supra note 31. 89. Id., art. 2. 90. Treaty, supra note 31. 91. In Ker v. Illinois the argument that the extradition treaty between the United States and Peru precluded the defendant's prosecution was denied because the agent who kidnapped Ker was not acting under a treaty or with the authority from the United States government. 119 U.S. at 443. The United States has entered into bilateral treaties of extradition with over ninety countries, including virtually all of the major drug-producing, processing, and distributing countries. 18 U.S.C. § 3181 (1989). 92. United States v. Schouweiler, 19 F.2d 387 (S.D. Cal. 1927)(court had no jurisdiction over prosecution for conspiracy to smuggle liquor into the United States in violation of the Tariff Act, where the vessel was seized 66 miles from the American coast); United States v. Ferris, 19 F.2d 925 (N.D. Cal. 1927)(court had no jurisdiction over prosecution of crew-members of a Panamanian vessel seized at sea 270 miles from the United States territory, (Treaty of 1924; Prohibition and Tariff Acts)). 93. Ford, 273 U.S. 593. 94. Justice Miller stated:

If the proceedings under which the party is arrested ... are to have no influence in limiting the prosecution in the country where the offence is charged to have been committed, there is very little use for this particularity in charging a specific offence, requiring that offence to be one mentioned in the treaty, as well as sufficient evidence of the party's guilt to put 600 Arizona Journal of Internationaland Comparative Lav [Vol. 9, No. 2

Treaties are designed to protect the sovereignty and comity of the contracting government parties entered into the treaty, 9 5 while "individual rights are only derivative through the states." 96 Therefore, even if the United States seizure of Noriega on Panamanian soil violates an extradition treaty, most courts would require the Panamanian government to officially protest in order to frustrate the court's 9 7 jurisdiction. In Ker, the Court granted jurisdiction over the defendant because the parties did not invoke the extradition treaty between the United States and Peru, and the foreign sovereign never protested the abduction. 98 Even though the agent possessed the proper extradition papers to comply with the treaty, the papers were never removed from his pocket and presented to the appropriate authorities. The treaty was never invoked and therefore 99 never violated because this was a "clear case of kidnapping." Similarly, the abduction of Noriega from Panamanian soil was a kidnapping as opposed to an extradition which invokes the protections of the treaty. Noriega did not invoke the treaty between Panama and the United States. Therefore he cannot rely upon it. Aside from Noriega's special status, Ker controls in this situation despite the presence of a treaty. The forceful apprehension of a foreigner on foreign soil, subject to a United States warrant therefore, is permitted. Furthermore, it was evident

him upon trial for it.

United States v. Rauscher, 119 U.S. 407, 421 (1886). Rauscher was decided the same day as Ker v. Frisbie. 95. United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.), cert. denied, 421 U.S. 1001 (1975). The Second Circuit stated that "even where a treaty provides certain benefits for nationals of a particular state ... it is tradi- tionally held that any rights arising out of such provisions are, under international law, those of the states and . .. individual rights are only derivative through the states."' (quoting Restatement (Second) of the Foreign Relations § 155 cmt. e (1965)). 96. Restatement (Third) of Foreign Relations § 115 cmt. e (1986). 97. United States v. Cordero, 668 F.2d 32 (1st Cir. 1981), involved extradition treaties with Panama and Venezuela. United States v. Caro- Quintero, 745 F. Supp. 599 (C.D. Cal. 1990), involved an extradition treaty between Mexico and the United States. The judge held that when a treaty is violated and the asylum nation protests, the court must return the defendant. Id. This case was reversed by U.S. v. Alvarez-Machain, 112 S.Ct 2188 (1992). For a discussion of Alvarez-Machain, see infra notes 103-07 and accompanying text. 98. "Any rights arising out of such provisions are, under international law, those of the states and ... individual rights are only derivative through the states." Restatement (Third) of Foreign Relations § 115 cmt. e (1987). 99. Ker, 119 U.S. at 442-43. 19921 Grant of Jurisdictionin U.S. v. Noriega that President Guillermo Endara, 100 the "recognized" head of the Panamanian government, 101 would not lodge an official protest against the abduction of Noriega. In fact, there are some claims that Endara specifically asked the United States to help restore the democratic order02 to his country, which required the elimination of Noriega's stronghold.1 Recently, in United States v. Alvarez-Machain,103 the Court held that despite the fact an extradition treaty existed between the United States and Mexico, the District Court had jurisdiction to try a Mexican national 0 4 who had been forcibly kidnapped and brought to the United States. 1 This case is the most recent affirmation granting legal authority to uphold the validity of the indictment and jurisdiction over General Noriega in United States v. Noriega. Although a treaty existed, the Court concluded that the abduction of Alvarez did not violate the specific terms of the treaty, therefore, the court additionally concluded that respondent's abduction was not in violation of the United States-Mexico Extradition Treaty.105 In the absence of a controlling treaty, the Court relied on Ker, stating "the power of a court to try a person for a crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of 'forcible abduction."' 106 The dissent believed the treaty was designed to cover the entire subject of extradition; therefore, any forcible abduction was in violation of the "purpose" of the treaty. However the majority held Ker applied because the abduction was outside the treaty's terms. 107

C. Noriega as a National

Deploying over 24,000 troops was an unusual procedure merely to

100. President Guillermo Endara, Vice Presidents Ricardo Arias Calderon and Guillermo Ford were sworn into office at a United States military base prior to the invasion of Panama as the "recognized" government. Rosenthal, supra note 9, at col. 1. 101. See infra notes 144-55 and accompanying text. 102. Upon being sworn in, Endara immediately asked the U.S. to "restore" democracy to Panama. Fricker, supra note 19. 103. 112 S.Ct. 2188 (1992). 104. In U.S. v. Alvarez-Machain, a Mexican national mdved to dismiss his indictment. The national was forcibly kidnapped and brought to the United States to stand trial for crimes in connection with the kidnapping and murder of a United States Drug Enforcement Administration special agent and his pi- lot. Id. 105. Extradition Treaty, May 4, 1978, United States-United Mexican States, 31 U.S.T. 5059, T.I.A.S. No. 9656. 106 Frisbie v. Collins, 342 U.S. 519, 521-22 (relying on the rule set forth in Ker, 119 U.S. 436). 107. 112 S.Ct. at 2197. 602 Arizona Journalof Internationaland Comparative Lv [Vol. 9, No. 2

capture a common drug-trafficker. Nevertheless, the United States government elected to treat General Noriega simply as a drug-trafficker despite his past political relations with this country and the powerful position he held in Panama. However, no matter what title the United States withholds from or bestows upon General Noriega, this case is not just another drug case.108 It is a case riddled with politics against an illegitimate leader. There is no "right of asylum" in a foreign country for the citizen of a requesting country who was charged with a criminal offense. 109 The harboring country is required to deliver the defendant upon proper request. However, most extradition treaties contain no obligation on the defendant's country to extradite its own nationals. 110 Many extradition 1I treaties, including the one between the United States and Panama,1 exempt nationals from being prosecuted in another country because of inherent unfairness for having to conduct a defense in a foreign land. The broad approach of the Ker-Frisbiedoctrine does not require the host state to extradite its own nationals. Additionally, Panama's own Constitution provides a caveat to the far-reaching hand of extraterritorial jurisdiction: "The State may not extradite its nationals.., for political offenses." 112 However, Noriega was not extradited by his home state. Instead the United States abducted him for offenses committed in 13 Panama. 1 Jurisdictional issues may arise if Panama considered Noriega to be a national and objected to his transfer to the United States in violation of the Panama-United States Extradition Treaty.114 However, there are no set international guidelines to determine who is a national or what constitutes a political offense. Each state must determine these issues under its own law. To add to the uncertainty, other states are obligated to recognize this determination only so far as it is consistent with

108. Blake, supra note 5 (quoting Bruce Zagaris, Chairman of the American Bar Association's panel on international criminal law). 109. Ker, 119 U.S. at 442. 110. The individual state must determine who shall be recognized as its nationals. The decision of its nationals must be recognized by other nations only for "consistency in international conventions, custom and the principles of law generally recognized with regard to nationality." Hague Convention of 1930 on Certain Questions Relating to the Conflicts of Nationality Laws, Apr. 12, 1930, art. 1, 179 L.N.T.S. 89. 111. Treaty, supra note 31. 112. Pan. Const. art. 24. 113. Many legal issues could have been raised if Noriega had been formally extradited to the United States to stand trial. For example, Restatement (Third) of Foreign Relations § 402 (1986) fails to include narcotics-trafficking as an international offense subject to universal jurisdiction. 114. Treaty, supra note 31. 1992] Grant of Jurisdiction in U.S. v. Noriega international conventions, custom and the principles of law generally recognized with regard to nationality.115 Thus, jurisdiction over Noriega rests solely upon the discretion of the Panamanian government and its decision to cooperate with the United States legal system.

1 1 6 D. Noriega as De Facto Leader

1. Head-of-State Immunity

Acknowledging that a finding of immunity would defeat the court's jurisdiction, the government stated Noriega did not fit within the norms for a diplomatic agent established by the Vienna Convention or the Diplomatic Relations Act (DRA).117 The DRA states: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of a receiving state."118 Although Noriega did possess a diplomatic passport, he was never presented by Panama as a diplomat nor certified as a diplomat by the 1 19 United States, both requirements necessary to claim diplomatic status. Furthermore, Noriega's status as the de facto head of Panama did not warrant his immunity under the head-of-state doctrine. 120 Noriega argued that as tlie de facto head of Panama, whether legally or officially 1 2 1 recognized as such, he should be afforded head-of-state immunity. Unlike the doctrines of diplomatic immunity and sovereign immunity, 122 head-of-state immunity under United States law is unclear,

115. 1 Oppenheim 643-45. 116. A de facto leader is "one who is in actual possession of the office or supreme power, but by usurpation, or without lawful title;" while a de jure leader is "one who has just claim and rightful title to the office or power, but has never had plenary possession of it, or is not in actual possession." Black's Law Dictionary 374 (6th ed. 1990). 117. See United States' Response and Incorporated Memorandum of Law in Opposition to Defendant Noriega's Motion to Dismiss Indictment at 30, United States v. Noriega, No. 88-0079 (S.D. Fla. Jan. 4, 1989)[hereinafter Government Response]. 118. Vienna Convention on Diplomatic Relations, April 18, 1961, art. 31, 23 U.S.T. 3227, 500 U.N.T.S. 95. 119. Noriega, No. 88-0079 (S.D. Fla. filed Jan. 4, 1989). 120. Id. at 20-30. 121. Motion to Dismiss Indictment and Incorporated Memorandum of Law at 30. United States v. Noriega, No. 88-0079 (S.D. Fla. filed Jan. 4, 1989). [Hereinafter Noriega's Motion]. 122. Diplomatic immunity in the United States is governed under the Vienna Convention on Diplomatic Relations. Supra note 117. Sovereign immunity in the United States is governed under The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1332 (a)(2)-(4), 1391(f), 1441(d), 1602-1611, (1982). 604 Arizona Journalof Internationaland ComparativeLaw [Vol. 9, No. 2

123 and there does not exist an international standard for use as a reference. Diplomatic immunity is an international doctrine, by which states relinquish the jurisdiction of their courts against diplomatic representatives of foreign states. 124 Under the doctrine of sovereign immunity the sovereign and the state are treated as one entity. Therefore, the sovereign could do no wrong125 and consequently would not be liable for any wrongdoing. Though sovereign immunity was the basis of head-of-state immunity, 126 these two types of immunity have evolved into separate doctrines. Today, heads of state are no longer viewed as the personification of the state. The state and the ruler are autonomous entities subject to separate criteria for immunity. The states alone are generally the parties subject to international law; 127 therefore, a foreign leader's immunity is restricted to 12 8 his public acts. The Federal Sovereign Immunities Act (FSIA) defines a "foreign state" as the state and its agencies or instrumentalities. 129 Because it is uncertain whether heads of state1 30 are included in this definition, most courts determine the issue of sovereign immunity under the guidelines of the FSIA but defer to the executive branch, most notably the State Department, in cases involving the issue of immunity for heads of 1 state.13 Head-of-state immunity was designed to give foreign leaders freedom to perform their duties without being subjected to the interference of a

123. Head of state immunity does not have any formal United States law as a basis. See Jerrold L. Mallory, Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169 (1986). 124. See Restatement (Revised) of Foreign Relations tit. B, ch. 3, intro. note (Immunity from Jurisdiction) (Tent. Draft No. 4 1983). 125. Mallory, supra note 123, at 170. 126. Id. 127. 1 D. O'Connell, InternationalLaw 80-81 (2d ed. 1970). 128. See cf. H.R. Rep. No. 1487, 94th Cong., 2d Sess. 7, reprinted in 1976 U.S.C.C.A.N. 6605, 6606. 129. 28 U.S.C. §1603 (1982). In 1976, the FSIA transferred to the judiciary the determination of when nations are immune from U.S. jurisdiction. No guidance was given whether heads of state whould be included in this immunity. No section of the revised FSIA explicitly recognizes any type of immunity for heads of state. Mallory, supra note 123, at 169. 130. "A 'head of state' should be defined as the political or ceremonial head of a government recognized by the United States. Because states grant immunity from their jurisdiction as a privilege, the United States would not extend immunity to officials or governments with which it does not have diplomatic relations." Mallory, supra note 123, at 188. 131. See Domingo v. Marcos, No. C82 1055 V (W.D. Wash. filed Dec. 23, 1982) (granting State Department's suggestion of immunity and dismissing Marcos). 19921 Grant of Jurisdictionin U.S. v. Noriega

foreign country's legal system.1 32 The State Department determines whether an official is entitled to immunity and makes a recommendation to the Department of Justice which forwards it to the court handling the case. However, the State Department has no written guidelines for formulating its recommendations; thus, its recommendations are vulnerable to political considerations 13 3 and may operate to deny immunity to disfavored leaders, such as General Noriega. This procedure also raises questions of due process because the judicial determination is based upon an executive decision guided by no set standard. 13 4

a. Doe No. 700

A federal court recently defined head-of-state immunity and its parameters in Doe No. 700135 when reviewing a claim by former 13 6 Philippines President Ferdinand Marcos for head-of-state immunity. "The doctrine maintains that [a] head of state is immune from jurisdiction of a foreign state's courts, at least as to authorized official acts taken while the ruler is in power."13 7 Briefly stated, the Fourth Circuit held that acts of government officials which display sovereign power are inherently public. Therefore, any challenge to them in the United States courts falls within the act-of-state doctrine.13 8 Noriega argues this definition allows his actions to fall within the parameters of the doctrine. General Noriega further argues that even if he does not fall within the international definition of head of state, he cites many sources claiming he 139 controlled Panama and therefore is entitled to head-of-state immunity. However this argument undermines Noriega's reliance on the government's position in Republic of Philippinesby Central Bank of Philippines v. Marcos.14 0 In Central Bank, The Philippine Solicitor General Sedefray

132. In Re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108, 1110 (4th Cir.), cert. denied, 108 S. Ct. 456 (1987). 133. R. Heller, Litigation of Soverign [sic] Immunity Questions, 70 Prof. Am. Soc'y Int'l L. 42, 47 (1976). 134. Mallory, supra note 123, at 183. 135. In Re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108 (4th Cir.), cert. denied, 108 S. Ct. 456 (1987) (Ferdinand Marcos' head-of-state immunity held waived by the Philippine government). 136. Id. 137. Id. at 1110 (emphasis added). 138. "So long as the act is the act of the foreign sovereign, it matters not how grossly the sovereign has transgressed its own laws," Marcos 818 F.2d at 1483 (citing Banco de Espana v. Federal Reserve Bank 114 F.2d 438, 444 (2d Cir. 1940)). 139. Noriega, 746 F. Supp. at 1519. 140. 665 F. Supp. 793, 798 (N.D. Cal. 1987). 606 Arizona Journal of Internationaland ComparativeLaw [Vol. 9, No. 2

Ordonez was served with a subpoena while on official business in the United States. The government argued unsuccessfully that the Solicitor General qualified for head-of-state immunity. 141 Noriega argued he was an even higher-ranking official than a Solicitor General, both de jure as commandante of the PDF and de facto as head of the Panamanian government.1 42 No authority exists for such an extension of head-of- state immunity, therefore the Court did not grant immunity to Noriega regardless of his power in Panama. 14 3

b. Recognition Test In 1793, former Secretary of State Thomas Jefferson laid the groundwork for the recognition of new governments in the Americas. He stated, "I consider the people who constitute a society or nation as the source of all authority in that nation, as free to transact their common concerns by any agents they think proper, to change these agents individually, or the organization of them in form or function whenever they please . ."144 Stemming from this principle, until the early twentieth century, the United States accorded recognition almost automatically to new regimes which installed themselves in power in Latin America. As long as no substantial body of citizens opposed the new regime and the new government was performing its international obligations, the de facto government was transformed to de jure status with the United States recognition. The questionable morality behind this procedure of recognition and formation of policies motivated a 1907 Washington Conference in which Central American nations agreed not to recognize new regimes in Central America which came into power as a result of a coup d'etat or revolution against the recognized government. 145 Before recognition of a regime occurred, this new policy required an appraisal of the constitutional validity of the new regime and international consultation. 146 Although the United States never signed the Central American treaties, the policy became a model for the United States practice of recognizing

141. Noriega, 746 F. Supp. at 1520. 142. Noriega!s motion, supra note 121, at 30. 143. Noriega, 746 F. Supp. at 1521. 144. Opinion on French Treaties (Apr. 28, 1973), in 7 The Works of Thomas Jefferson 284-85 (Paul Leicester Ford ed., 1904-1905). 145. William M. Malloy, Treaties, Conventions, International Acts (Washington: U.S. Government Printing Office, 1910) 11, 2398. 146. Donald Dozer, Recognition in Contemporary Inter-American Relations, 8 J. of Inter-Am. Stud. 318, 321 (1966). 19921 Grant of Jurisdictionin U.S. v. Noriega

governments. 147 Since the 1960s, the United States has emphasized "diplomatic relations" as the test for foreign policy while "formal recognition" was de- emphasized. 1 4 8 Using the diplomatic relations test, Noriega would be a contender for immunity. However, in response to Noriega's motion, the government argued that his status as the de facto head of Panama did not warrant him immunity under the head-of-state doctrine. 14 9 Noriega was precluded from claiming head-of state immunity because President Eric - Arturo Delvalle was the formally recognized president of Panama until 1989150 when Guillermo Endara was sworn in moments before the December invasion. 15 1 The Panamanian government headed by Delvalle and then Endara was the formally recognized government of Panama, even though Noriega and his regime were the government entity in constant contact and negotiations with the United States government. General Noriega continued diplomatic relations with the United States which his predecessor General Omar Torijos had initiated. Moreover, the United States government never expressed concern that these relations were with an individual other than the legitimate leader of Panama until after Noriega's claim to immunity from jurisdiction under the head-of-state doctrine. The United States seemingly made this "de-recognition" of Noriega solely for the purpose of denying him head-of-state immunity. The court in United States v. Noriega15 2 disregarded the apparent power of Noriega and reverted to the requirement that before it would consider immunity, the United States must formally recognize the government. The Court concluded that Noriega never received head-of- state status either under the Panamanian Constitution or by the United 5 3 States. 1 Noriega contends his right to immunity does not extend from the traditional grant by the United States government to a recognized leader,

147. Id. 148. See L. Galloway, Recognizing Foreign Governments: The Practice of the United States (1987). 149. Government's Response, supra note 117, at 32. 150. Noriega 746 F. Supp. at 1519. 151. Id. at 1511. 152. 746 F. Supp. at 1519. 153. The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (T.I.A.S. No. 8532; 28 U.S.T. 1975) would not include Noriega in its definition as head of state. "Internationally protected person" includes "(a) a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister of Foreign Affairs...." Noriega, 746 F. Supp. at 1520 n.13 (citing Pan. Const. tit. VI, art. 170 which calls for an executive branch composed of the President and Ministers of State, neither of which applies to Noriega). 608 Arizona Journal of Internationaland Comparative Law [Vol. 9, No. 2 but exists as a result of his status as the de facto leader of Panama "regardless of the source of his power or the nature of his rule."'154 However, even if Noriega was a contender for immunity as a high official of Panama, head-of-state immunity is an attribute of state sovereignty, not an individual right. Granting immunity to a leader such as Noriega regardless of his source of power or nature of rule would allow illegitimate dictators to benefit from their forceful and unlawful development of an illegitimate government. 155 In other words, the request for immunity had to come from the legitimate Panamanian government itself, recognized by the Executive Branch, in order for the court to consider such a petition. The recognized head of Panama did not protest this indictment thus claiming Noriega was not an official member of the Panamanian government. Another ground upon which to deny head-of-state immunity is that the acts for which Noriega was indicted were not "authorized official acts." 156 Drug-related activities are not acts of state; to the contrary, such acts only further the leader's own self interest. Unlike sovereign immunity, in which the state and leader were treated as one, head-of-state immunity requires that "the defendant must establish that his activities are 'acts of state."' 157 This means the activities were done to benefit the state, not merely to benefit the actor alone. The fact that Noriega may have been considered the de facto leader of Panama does not indicate that he is incapable of private acts. 158 The government cited Jimenez v. Aristeguieta1 59 as an authoritative case directly against Noriega's position. In Jimenez, Venezuela sought to extradite Jimenez, its former dictator, on various acts committed while he was in power. The Fifth Circuit rejected the appellants claims that all of his acts as the Venezuelan dictator were acts of state which precluded prosecution. 160 The court concluded that the dictator's actions were for his own benefit and could not be characterized as sovereign acts; therefore, they were not entitled to state 1 protection. 16 Noriega's alleged drug-trafficking and related offenses can hardly be construed as public acts undertaken for the Panamanian state. The alleged actions for which Noriega was charged, using the metaphor from Jimenez, are as far from being acts of state as an act of rape. 162 However, Noriega

154. Noriega, 746 F. Supp. at 1520. 155. Sherman, supra note 56. 156. Marcos, 818 F.2d at 1482-83. 157. Id. 158. De Roburt v. Gannett Co., 733 F.2d. 701, 704 (1984); Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962). 159. Jimenez, 311 F.2d at 547. 160. Id. at 557. 161. Id. at 558. 162. Id. 19921 Grant of Jurisdictionin U.S. v. Noriega argued that because the acts listed in the indictment were those acts performed in his official capacity, they are immune regardless of their legality. 163 In support of this proposition, General Noriega relied upon Republic of the Philippinesv. Marcos.164 In Marcos, the Ninth Circuit held while the Marcoses were sovereigns of the Philippines, any acts which display sovereign power are inherently public, and "the act of state doctrine prohibits inquiry into the legality of official government acts." 165 Relying on Marcos in his motion, Noriega characterized his acts as those performed within his official capacity. 166 Nevertheless, it is preposterous to equate a dictator's acts facilitating international drug trafficking with official acts of state.

E. Noriega..as a Prisoner of War

On January 26, 1990, presiding United States District Judge William M. Hoeveler received a letter addressed to President George Bush from General Noriega which claimed Noriega should be afforded the status of and given the protections of a POW since he surrendered to United States authorities during a time of hostilities. 167 Citing the Geneva Convention as his source of authority, 168 Noriega declared one such protection is the immunity from prosecution in a United States court. A POW, under the Geneva Convention, is defined as anyone who "has fallen into the power of the enemy." 169 Therefore, Noriega contended, he should be removed to 170 a neutral third country for trial. On February 2, 1990, the Justice Department announced that the United States government had agreed to treat General Noriega and co- 171 defendant Lieutenant Colonel Luis del Cid, as Prisoners of War. Six days later Judge Hoeveler granted that General Noriega may be a POW,

163. Noriega's Motion, supra note 121, at 34. 164. Marcos, 818 F.2d at 1483. 165. Id. 166. Noriega's Motion, supra note 121, at 2. 167. Noriega Claims POW Status, Facts on File World News Digest, Feb. 16, 1990, F2, at 101. 168. The Third Geneva Convention [hereinafter Geneva Convention] defines a "prisoner of war" as a person who has fallen into the power of the enemy and is (1) a member of the armed forces of a Party to the conflict; (2) a member of the militia or volunteer corps forming part of such armed forces; or (3) a member of regular armed forces who professes allegiance to a government or authority not recognized by the detaining power. Geneva Convention, art. 4, see. A(l), (2). 169. Geneva Convention, art. 4, sec. A. 170. Noriega, 746 F. Supp. at 1527. 171. Noriega Claims POW Status, supra note 167. 610 Arizona Journal of Internationaland ComparativeLaw [Vol. 9, No. 2 but ruled that status did not preclude him from standing trial in a United 17 2 States court. Subject to the court's agreement to treat Noriega as a POW, he was entitled to certain protections and benefits including his own copy of the Geneva Convention, an allowance of $59 a month, regular visits from the International Red Cross, and the right to wear his uniform in court proceedings. 173 However, the court ruled immunity from jurisdiction is not one of the protections automatically afforded POWs. In fact, the "equivalency doctrine' of the Geneva Convention specifically grants the detaining country jurisdiction over POWs for federal violations as long as members of the detaining power's own military forces would be subject to 174 the same laws. The indictments charged Noriega with federal crimes,175 for which any United States soldier could be subjected to prosecution, including RICO violations.176 Because a member of the United States armed forces could be prosecuted for drug trafficking, RICO violations and any other violation listed in the grand jury indictments charging Noriega, the equivalency doctrine177 permits jurisdiction for these charges against the defendant even though he is a POW. Therefore, whether Noriega was legally a POW under the Geneva Convention was irrelevant to the jurisdictional issue since the United States can try a POW who committed to the hostilities in which he was taken prisoner, even if the crimes prior 178 prisoner was illegally abducted. Noriega further contended that if he should be tried in a United States court, the trial may only proceed against any counts of the indictment committed during the hostilities between the United States and

172. Noriega, 746 F. Supp. at 1506. 173. Deguine, Noriega, America's Most Famous P.O.IV., Awaits Trial, The Reuter Library Report, Dec. 14, 1990. 174. The Geneva Convention art. 84: A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect to the particular offence alleged to have been committed by the prisoner of war. Under 18 U.S.C. §3231 (1948), federal district courts have concurrent jurisdiction with military courts over all violations of the laws of the United States committed by military personnel. See United States v. Walker, 552 F.2d 566, 567 (4th Cir.), cert. denied, 434 U.S. 848 (1977). 175. Geneva Convention art. 84. 176. Noriega is charged with racketeering, in violation of the RICO statutes, 18 U.S.C. § 1962(c) (1970) and 18 U.S.C. § 1962(d) (1988). See supra notes 1-3. 177. Geneva Convention art. 82: Prisoners of War may be prosecuted for criminal violations only if a member of the detaining country would be subject to like prosecution for the same conduct. 178. Noriega, 746 F. Supp. at 1526. 19921 Grant of Jurisdiction in U.S. v. Noriega 611

Panama. 179 The indictments charged Noriega with violations of United States law allegedly committed between December 1982 and March 1986. Noriega's alleged misconduct prior to the December 20, 1989 invasion of Panama led to Noriega's arrest on January 3, 1990. Article 85 of the Geneva Convention appears to refute Noriega's contention that these prior acts should be excluded from trial, stating: "Prisoners of War prosecuted under the laws of the Detaining Powerfor acts committed priorto capture shall retain, even if convicted, the benefits of the present Convention." 180 Article 85, by creating protections for POWs that will be tried "for acts committed prior to capture," recognizes that the court has jurisdiction to hear the case of Noriega as a Prisoner of War.

V. CONCLUSION

General Noriega moved to dismiss for lack of jurisdiction the drug- related charges listed in the indictment. 181 District Court Judge William M. Hoeveler denied the defendant's motion for the following reasons: the Panama Defense Forces leader was not the country's president acting on behalf of the state, and was not a diplomat; therefore, he was not entitled to immunity; the Geneva Convention relative to POWs did not divest the district court of jurisdiction; and the invasion of Panama, even if illegal, did not inflict upon General Noriega the type of physical injury and coercion necessary to divest the court's jurisdiction.182 The indictments of General Noriega are virtually without legal precedent. Under the Ker-Frisbie doctrine, extraterritorial jurisdiction has been historically accepted. The extension of jurisdiction to a foreigner on his own soil, however, was not anticipated in Ker.183 Many have claimed General Noriega to be the true leader of Panama. Moreover, because the United States openly conducted relations with General Noriega, the United States recognition of Eric Arturo Delvalle as the legitimate leader of Panama and denial of General Norega's status as head of state are meritless. No authority exists, however, to extend head- of-state immunity to a de facto leader. Since the United States never formally recognized general Norega as Panama's head of state, he has no claim to head-of-state immunity. Under the discretionary suggestion of head-of-state immunity by the State Department, immunity is not a "right." Granting Noriega immunity

179. Noriega, 746 F.Supp at 1528. 180. Geneva Convention art. 85. (emphasis added). 181. Noriega, 746 F. Supp. at 1506. 182. Id. 183. SeeKer, 119 U.S. 436. 612 Arizona Journalof Internationaland ComparativeLaw [Vol. 9, No. 2 would encourage other dictators to unlawfully rise up and seize control without fear of consequences for their criminal actions. Furthermore, it may not be seriously suggested that every act by a leader, whether private or public, should be off limits to the courts. Head-of-state immunity is designed to protect international comity and respect among nations by allowing leaders to perform government duties without fear of prosecution by foreign courts. Head-of-state immunity is not designed to provide a carte blanche for dictators to do wrong. As this Note explains, treating General Noriega as a POW does not divest the court of jurisdiction because the Geneva Convention does not provide an absolute exclusion against prosecution for POWs Therefore, even if Noriega was entitled to the full protection afforded POWs by the Geneva Convention, the motion to dismiss for lack of jurisdiction on this basis would be denied. Noriega ruled the country by controlling Panama's weapons and its military. Those who defied Noriega through suggestions of civilian control risked being silenced. The United States removed the tyrannical leader of Panama through intervention and set an example for other dictators who control their countries through brute force. Even if some of those entrenched leaders regard themselves as secure against uprisings in their own countries, they are not insulated against intervention by countries who feel the effects of their illegal acts. The necessary counterpart is this standard puts United States officials and citizens at risk of intervention by other countries.