The Maduro Matter: Unfinished Business

The criminal prosecution of Venezuela’s strongman, Nicolas Maduro, could force the Supreme Court to face some unfinished business left over from the case of another Latin American dictator, Manuel Noriega. Mr. Maduro’s lawyer, Barry Pollack, suggests that El Presidente’s position as a head of state offers him immunity, and moots “questions about the legality of his military abduction.” Many, but not all, such questions were settled in the Noriega case.Noriega, after being captured by American forces 36 years ago to the day before Mr. Maduro’s seizure, was tried in federal court. In 1992, he was convicted and sentenced to 40 years in prison. That was just the beginning of a legal odyssey for the Panamanian tyrant. Aspects of it could yet be reprised in United States v. Nicolas Maduro. Much of the contention in the Noriega case stemmed from a federal judge designating Noriega a prisoner of war.That determination, by Judge William Hoeveler of Florida’s southern district, followed Noriega’s conviction and sentence. That prevented Noriega from using the designation to evade punishment in federal courts. Yet Noriega sought to capitalize on his POW status to avoid harsh terms of confinement — and, later, to prevent his extradition to France to face additional criminal charges. Mightn’t Mr. Maduro, too, seek designation as a POW? The Venezuelan dictator is already claiming he is “a president and prisoner of war,” as he exclaimed today in an outburst in court. The question is not yet formally before the district judge presiding in the case, Alvin Hellerstein. Even if the judge is inclined to designate Mr. Maduro a POW, the fact that there is “not a war” between America and Venezuela, per Secretary of State Marco Rubio, adds a complicating factor.Yet America never declared war on Panama, either, and that failed to prevent Judge Hoeveler from granting Noriega POW status. At the time, reported the Times, “human rights advocates said the decision was a vital affirmation of the international rule of law.” Judge Hoeveler, too, urged Noriega to “file a writ of habeas corpus in Federal court” should the convicted criminal “feel his rights are being violated,” the Times added.That marked, per the Times, “the first time a Federal judge has held that the Geneva convention is self executing.” In other words, under Judge Hoeveler’s reasoning, there was no need for legislation to allow individuals to claim their rights under the treaty were breached. “Regardless of whether it is legally enforceable under the present circumstances, the treaty is undoubtedly a valid international agreement and ‘the law of the land,’” the judge ruled.It would take until 2009 for this legal question to reach the Supreme Court. Much water had flowed under the bridge by then, including the September 11 attacks and the Military Commission Act of 2006, which sought to bolster the government’s ability to prosecute enemy combatants in army courts. The solicitor general then, one Elena Kagan, argued that the Act bars prisoners from invoking the Geneva Conventions as a “source of rights.” Noriega called that unconstitutional. Yet in 2010 the high court declined to hear the case. Justice Clarence Thomas, joined by The Great Scalia, balked at leaving the question unsettled. Deciding the case, Justice Thomas said, “would provide much-needed guidance” and “spare detainees and the Government years of unnecessary litigation.” The Nine’s failure to resolve this question could haunt Mr. Maduro’s case. Justices Scalia and Thomas, what a visionary pair.

The Maduro Matter: Unfinished Business

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