Legal Commentary

Court action at last in Noriega v. Pastrana

By John Elwood

After relisting the case a whopping ten times, the Court at last denied cert in Noriega v. Pastrana, which presented the questions whether Section 5 of the Military Commissions Act of 2006, which provides that ?[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action,? precluded former Panamanian strongman Manuel Noriega from invoking the Third Geneva Convention Relative to the Treatment of Prisoners of War as a source of rights in a habeas corpus proceeding, and whether, assuming he could assert a claim based on the Geneva Convention, his extradition to France to face money-laundering charges would violate the Convention.

As I predicted in my interminable post here, there was a dissent from denial of cert. But the dissent most certainly did not come from the person I thought was ?the favorite candidate? (Justice Stevens) to write it, or even the alternate I identified (Justice Breyer), but from Justice Thomas, joined by Justice Scalia. He wrote that the Court should have taken the case to

provide much-needed guidance on two important issues with which the political branches and federal courts have struggled since we decided Boumediene [v. Bush, 128 S. Ct. 2229 (2008) (which invalidated section 7 of the MCA, holding it violated the Suspension Clause)]. The first is the extent, if any, to which provisions like Section 5 affect 28 U. S. C. §2241 in a manner that implicates the constitutional guarantee of habeas corpus. The second is whether the Geneva Conventions are self-executing and judicially enforceable.

He then identified several cases that implicated those issues and related ones.

So the question is: why couldn?t Justices Thomas and Scalia attract the votes of Justices Stevens, Ginsburg, Breyer, or Sotomayor to grant? Or the Chief or Justice Alito, for that matter? There are arguments for why the case does not meet the traditional criteria for certiorari, in that Noriega is the only person in the United States who has been declared a POW. But Thomas makes a strong enough argument for the case?s ongoing relevance that it at least raises a question why Stevens and some of his colleagues on the Court?s left didn?t vote in favor of a grant because of the case?s relevance to ongoing detainee litigation.

It?s an obvious instance where someone might say it?s a ?defensive denial,? where Justices don?t ?want to risk granting a case in which, at the end of the day, they might not prevail.? (See this article for a discussion of ?defensive denials.?) Generally, I?m skeptical of cert theories that attempt to explain denials as reflecting strategy rather than the simple application of traditional cert critera, but the thought crossed my mind in this case.

Full post as published by The Volokh Conspiracy on January 25, 2010 (boomark / email).