On February 4, 1988, a federal grand jury for the Southern District of Florida indicted Manuel Antonio Noriega on drug-related charges, and then the U.S. government invaded Panama, abducting its de facto head of state. A jury in Miami found Noriega guilty of eight counts in the indictment and not guilty of the remaining two counts. Noriega first argued that the district court should have dismissed the indictment against him based on head-of-state immunity. He insisted that he was entitled to such immunity because he served as the de facto, if not the de jure, leader of Panama. The district court rejected Noriega's head-of-state immunity claim because the United States government never recognized Noriega as Panama's legitimate, constitutional ruler. The United States Court of Appeals, Eleventh Circuit did not find any error in the district court's denial of Noriega's immunity claim.
***** United States Court of Appeals, Eleventh Circuit.
Nos. 92-4687, 96-4471.
UNITED STATES of America, Plaintiff-Appellee, v. Manuel Antonio NORIEGA, Defendant-Appellant.
July 7, 1997.
Appeals from the United States District Court for the Southern District of Florida. (No. 88-79-CR-WMH), William H. Hoeveler, Judge.
Before ANDERSON and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge....
...Noriega next contends his conviction should be reversed because he alleges he was brought to the United States in violation of the Treaty Providing for the Extradition of Criminals, May 25, 1904, United States of America-Republic of Panama, 34 Stat. 2851 ("U.S.-Panama Extradition Treaty"). The Supreme Court's decision in United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), forecloses this argument.[4] In Alvarez-Machain, the Court considered the issue of "whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts." Id. at 657. In answer, the Court stated: "We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States." Id.
In reaching this decision, the Court considered whether the treaty at issue expressly barred abductions. It determined that the treaty's provision that "'[n]either Contracting Party shall be bound to deliver up its own nationals ...'[fails] to specify the only way in which one country may gain custody of a national of the other country for purposes of prosecution." Id. at 663-64, 112 S.Ct. at 2193-94 (quoting Extradition Treaty, May 4, 1978, United States of America-United Mexican States, 31 U.S.T. 5059 ["U.S.-Mexico Extradition Treaty"]). The Court also rejected the argument that, by entering into an extradition treaty with Mexico, the United States impliedly agreed to seek custody of persons in Mexico only via extradition. Id. at 668-69, 112 S.Ct. at 2195-96 ("[T]o infer from this Treaty and its terms that it prohibits all means of gaining the presence of an individual outside of its terms goes beyond established precedent and practice.").
The article of the U.S.-Panama Extradition Treaty upon which Noriega relies for his extradition treaty claim contains almost the same language as the provision of the U.S.-Mexico Extradition Treaty at issue in Alvarez-Machain. See U.S.- Panama Extradition Treaty, art. 5 ("Neither of the contracting parties shall be bound to deliver up its own citizen or subject ..."). Noriega contends that Alvarez-Machain is distinguishable despite the near identity of the relevant clauses because, at the time the United States entered into the U.S.-Panama Extradition Treaty, it knew or should have known that Panama's constitution prohibited the extradition of its nationals. This bald assertion, even if accepted, does not save Noriega's claim. A clause in Panama's constitution regarding the extradition of Panamanians, at most, informs the United States of the hurdles it will face when pursuing such extraditions in Panama; such a provision says nothing about the treaty signatories' rights to opt for self-help (i.e., abduction) over legal process (i.e., extradition).
Under Alvarez-Machain, to prevail on an extradition treaty claim, a defendant must demonstrate, by reference to the express language of a treaty and/or the established practice thereunder, that the United States affirmatively agreed not to seize foreign nationals from the territory of its treaty partner. Noriega has not carried this burden, and therefore, his claim fails....
<http://www.law.emory.edu/11circuit/july97/92-4687.man.html> *****
The court also held that the military invasion did not violate due process.
In short, nothing protects foreign nationals from the USA with its tradition of "self help."
Yoshie