Saudi Arabian Airlines v.

CA - Case Digest

Facts:
Saudi Arabian Airlines (SAUDIA) hired Milagros Morada as a Flight Attendant for its airlines based in Jeddah, Saudi
Arabia. While on a lay-over in Jakarta, Morada went to a disco with fellow crew members Thamer & Allah, both Saudi
nationals. Because it was almost morning when they returned to their hotels, they agreed to have breakfast together
at the room of Thamer. In which Allah left on some pretext. Thamer attempted to rape Morada but she was rescued by
hotel personnel when they heard her cries for help. Indonesian police came and arrested Thamer and Allah, the latter
as an accomplice.

Morada refused to cooperate when SAUDIA’s Legal Officer and its base manager tried to negotiate the immediate
release of the detained crew members with Jakarta police.
Through the intercession of Saudi Arabian government, Thamer and Allah were deported and, eventually, again put in
service by SAUDIA. But Morada was transferred to Manila.

One year and a half year later, Morada was again ordered to see SAUDIA’s Chief Legal Officer. Instead, she was
brought to a Saudi court where she was asked to sign a blank document, which turned out to be a notice to her to
appear in court. Monada returned to Manila.

The next time she was escorted by SAUDIA’s legal officer to court, the judge rendered a decision against her
sentencing her to five months imprisonment and to 286 lashes. Apparently, she was tried by the court which found her
guilty of (1) adultery; (2) going to a disco, dancing and listening to the music in violation of Islamic laws; and (3)
socializing with the male crew, in contravention of Islamic tradition.

After denial by SAUDIA, Morada sought help from Philippine Embassy during the appeal. Prince of Makkah dismissed
the case against her. SAUDIA fired her without notice.

Morada filed a complaint for damages against SAUDIA, with the RTC of QC. SAUDIA filed Omnibus Motion to Dismiss
which raised the ground that the court has no jurisdiction, among others which was denied

ISSUE: Whether RTC of QC has jurisdiction to hear and try the case

HELD: YES. The RTC of QC has jurisdiction and Philippine law should govern.Its jurisdiction has basis on Sec. 1 of
RA 7691 and Rules of Court on venue. Pragmatic considerations, including the convenience of the parties, also
weigh heavily in favor of the RTC QC assuming jurisdiction. Paramount is the private interest of the litigant. Weighing
the relative claims of the parties, the court a quo found it best to hear the case in the Philippines. Had it refused to take
cognizance of the case, it would be forcing Morada to seek remedial action elsewhere, i.e. in the Kingdom of Saudi
Arabia where she no longer maintains substantial connections. That would have caused a fundamental unfairness to
her.

By filing a complaint, Morada has voluntarily submitted to the jurisdiction of the court. By filing several motions and
praying for reliefs (such as dismissal), SAUDIA has effectively submitted to the trial court’s jurisdiction.

KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO., LTD.,

vs
MINORU KITAMURA

G.R. No. 149177

November 23, 2007

FACTS:

Nippon Engineering Consultants (Nippon), a Japanese consultancy firm providing technical and management
support in the infrastructure projects national permanently residing in the Philippines. The agreement
provides that Kitamaru was to extend professional services to Nippon for a year. Nippon assigned Kitamaru
to work as the project manager of the Southern Tagalog Access Road (STAR) project. When the STAR project
was near completion, DPWH engaged the consultancy services of Nippon, this time for the detailed
engineering & construction supervision of the Bongabon-Baler Road Improvement (BBRI) Project. Kitamaru
was named as the project manger in the contract.

Hasegawa, Nippon’s general manager for its International Division, informed Kitamaru that the company had
no more intention of automatically renewing his ICA. His services would be engaged by the company only up
to the substantial completion of the STAR Project.

Kitamaru demanded that he be assigned to the BBRI project. Nippon insisted that Kitamaru’s contract was for
a fixed term that had expired. Kitamaru then filed for specific performance & damages w/ the RTC of Lipa City.
Nippon filed a MTD.

Nippon’s contention: The ICA had been perfected in Japan & executed by & between Japanese nationals. Thus,
the RTC of Lipa City has no jurisdiction. The claim for improper pre-termination of Kitamaru’s ICA could only
be heard & ventilated in the proper courts of Japan following the principles of lex loci celebrationis & lex
contractus.

The RTC denied the motion to dismiss. The CA ruled hat the principle of lex loci celebrationis was not
applicable to the case, because nowhere in the pleadings was the validity of the written agreement put in issue.
It held that the RTC was correct in applying the principle of lex loci solutionis.

ISSUE:

Whether or not the subject matter jurisdiction of Philippine courts in civil cases for specific performance &
damages involving contracts executed outside the country by foreign nationals may be assailed on the
principles of lex loci celebrationis, lex contractus, “the state of the most significant relationship rule,” or forum
non conveniens.

HELD:

NO. In the judicial resolution of conflicts problems, 3 consecutive phases are involved: jurisdiction, choice of
law, and recognition and enforcement of judgments. Jurisdiction & choice of law are 2 distinct
concepts.Jurisdiction considers whether it is fair to cause a defendant to travel to this state; choice of law
asks the further question whether the application of a substantive law w/c will determine the merits of the case
is fair to both parties. The power to exercise jurisdiction does notautomatically give a
state constitutional authority to apply forum law. While jurisdiction and the choice of the lex foriwill often
coincide, the “minimum contacts” for one do not always provide the necessary “significant contacts” for the
other. The question of whether the law of a state can be applied to a transaction is different from the question
of whether the courts of that state have jurisdiction to enter a judgment.

In this case, only the 1st phase is at issue—jurisdiction. Jurisdiction, however, has various aspects. For a court
to validly exercise its power to adjudicate a controversy, it must have jurisdiction over the plaintiff/petitioner,
over the defendant/respondent, over the subject matter, over the issues of the case and, in cases
involving property, over the res or the thing w/c is the subject of the litigation.In assailing the trial court's
jurisdiction herein, Nippon is actually referring to subject matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority w/c
establishes and organizes the court. It is given only by law and in the manner prescribed by law. It is further
determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of
the claims asserted therein. To succeed in its motion for the dismissal of an action for lack of jurisdiction over
the subject matter of the claim, the movant must show that the court or tribunal cannot act on the matter
submitted to it because no lawgrants it the power to adjudicate the claims.

In the instant case, Nippon, in its MTD, does not claim that the RTC is not properly vested by law w/ jurisdiction
to hear the subject controversy for a civil case for specific performance & damages is one not capable of
pecuniary estimation & is properly cognizable by the RTC of Lipa City.What they rather raise as grounds to
question subject matter jurisdiction are the principles of lex loci celebrationis and lex contractus, and the
“state of the most significant relationship rule.” The Court finds the invocation of these grounds unsound.

Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of the place where a contract
is made. The doctrine of lex contractus or lex loci contractusmeans the “law of the place where a contract is
executed or to be performed.” It controls the nature, construction, and validity of the contract and it may
pertain to the law voluntarily agreed upon by the parties or the law intended by them either expressly or
implicitly. Under the “state of the most significant relationship rule,” to ascertain what state law to apply to a
dispute, the court should determine which state has the most substantial connection to the occurrence and
the parties. In a case involving a contract, the court should consider where the contract was made, was
negotiated, was to be performed, and the domicile, place of business, or place of incorporation of the
parties.This rule takes into account several contacts and evaluates them according to their relative importance
with respect to the particular issue to be resolved.

Since these 3 principles in conflict of laws make reference to the law applicable to a dispute, they are rules
proper for the 2nd phase, the choice of law. They determine which state's law is to be applied in resolving the
substantive issues of a conflicts problem. Necessarily, as the only issue in this case is that of jurisdiction,
choice-of-law rules are not only inapplicable but also not yet called for.

Further, Nippon’s premature invocation of choice-of-law rules is exposed by the fact that they have not yet
pointed out any conflict between the laws of Japan and ours. Before determining which law should apply,
1st there should exist a conflict of laws situation requiring theapplication of the conflict of laws rules. Also,
when the law of a foreign country is invoked to provide the proper rules for the solution of a case, the existence
of such law must be pleaded and proved.
It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or
administrative agency, there are 3 alternatives open to the latter in disposing of it: (1) dismiss the case, either
because of lack of jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the
case and apply the internal law of the forum; or (3) assume jurisdiction over the case and take into account or
apply the law of some other State or States. The court’s power to hear cases and controversies is derived from
the Constitution and the laws. While it may choose to recognize laws of foreign nations, the court is not limited
by foreign sovereign law short of treaties or other formalagreements, even in matters regarding rights provided
by foreign sovereigns.

Neither can the other ground raised, forum non conveniens, be used to deprive the RTC of its jurisdiction. 1st,
it is not a proper basis for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include
it as a ground. 2nd, whether a suit should be entertained or dismissed on the basis of the said doctrine
depends largely upon the facts of the particular case and is addressed to the sound discretion of the RTC. In
this case, the RTC decided to assume jurisdiction. 3rd, the propriety of dismissing a case based on this
principle requires a factual determination; hence, this conflicts principle is more properly considered a matter
of defense.

F.
Republic vs Marcos
On February 25, 1986, Ferdinand Marcos and his party fled the Philippines, thereby ending his twenty-year
dictatorship. Seventy-two hours later, the Center for Constitutional Rights (CCR) was retained by the new
government to recover any of the Marcos regime’s illegally acquired assets hidden in the United States. Within three
days, CCR obtained the first court order freezing some of those assets in New York. At the same time, CCR
embarked on a nationwide legal campaign, with the assistance of numerous volunteer attorneys, to locate and return
Marcos’s ill-gotten fortune to the citizens of the Philippines.

Marcos’s activities violated Philippine laws and also caused a massive drain on the Philippine economy. The total
amount of money stolen may have equaled or exceeded the $30 billion Philippines national debt.

The major legal action against Marcos was begun in New York State court to restrain the sale of four properties in
New York City and one in Nassau County. The court granted a temporary restraining order. Defendants removed the
matter to federal court where CCR obtained a preliminary injunction against the sales.

The Second Circuit Court of Appeals sustained the district court’s injunction. The United States Supreme Court
denied a petition for a writ of certiorari.

The courts in effect held that if a dictator is charged with fleecing his country and a reasonable basis for the charge
appears to exist, the proceeds of his theft that are located with a court’s jurisdiction can be frozen until such time as a
Philippines court has a chance to adjudicate the charges.

With the basic legal issues resolved in favor of the plaintiffs, CCR helped to find other counsel to follow through on
the details real estate litigation that remained.

746 F. Supp. 1506 (1990)

 UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, et al., Defendants.
No. 88-79-CR.

United States District Court, S.D. Florida.

June 8, 1990.

*1507 *1508 *1509 Michael P. Sullivan, Myles H. Malman, Asst. U.S. Attys., Miami, Fla., William C. Bryson,
Deputy Sol. Gen., for the U.S.

Frank A. Rubino, Steven Kollin, Coconut Grove, Fla., Jon May, Miami, Fla., David Lewis, New York City, for
defendant Manuel Antonio Noriega.

Samuel I. Burstyn, Miami, Fla., for defendant Luis Del Cid.

OMNIBUS ORDER

HOEVELER, District Judge.

THIS CAUSE comes before the Court on the several motions of Defendants General Manuel Antonio Noriega
and Lt. Col. Luis Del Cid to dismiss for lack of jurisdiction the indictment which charges them with various
narcotics-related offenses.

*1510 The case at bar presents the Court with a drama of international proportions, considering the status of
the principal defendant and the difficult circumstances under which he was brought before this Court. The
pertinent facts are as follows:

On February 14, 1988, a federal grand jury sitting in Miami, Florida returned a twelve-count indictment
charging General Manuel Antonio Noriega with participating in an international conspiracy to import cocaine
and materials used in producing cocaine into and out of the United States. Noriega is alleged to have
exploited his official position as head of the intelligence branch of the Panamanian National Guard, and then
as Commander-in-Chief of the Panamanian Defense Forces, to receive payoffs in return for assisting and
protecting international drug traffickers, including various members of the Medellin Cartel, in conducting
narcotics and money laundering operations in Panama.

Specifically, the indictment charges 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 also allegedly traveled to Havana, Cuba and met with Cuban president Fidel Castro, who, according
to the indictment, mediated a dispute between Noriega and the Cartel caused by the Panamanian troops'
seizure of a drug laboratory that Noriega was paid to protect. All of these activities were allegedly
undertaken for General Noriega's own personal profit. Defendant Del Cid, in addition to being an officer in
the Panamanian Defense Forces, was General Noriega's personal secretary. He is charged with acting as
liaison, courier, and emissary for Noriega in his transactions with Cartel members and other drug traffickers.
Because of the activities alleged, Defendants are charged with engaging in a pattern of racketeering activity,
in violation of the RICO statutes, 18 U.S.C. งง 1962(c) and 1962(d); conspiracy to distribute and import
cocaine into the United States, in violation of 21 U.S.C. ง 963; and distributing and aiding and abetting the
distribution of cocaine, intending that it be imported into the United States, in violation of 21 U.S.C. ง 959 and
18 U.S.C. ง 2. Defendant Noriega is further charged with aiding and abetting the manufacture of cocaine
destined for the United States, in violation of 21 U.S.C. ง 959 and 18 U.S.C. ง 2; conspiring to manufacture
cocaine intending that it be imported into the United States, in violation of 21 U.S.C. ง 963; and causing
interstate travel and use of facilities in interstate commerce to promote an unlawful activity, in violation of 18
U.S.C. ง 1952(a) (3) and 18 U.S.C. ง 2.

Subsequent to the indictment, the Court granted General Noriega's motion to allow special appearance of
counsel, despite the fact that Noriega was a fugitive and not before the Court at that time. Noriega's counsel
then moved to dismiss the indictment on the ground that United States laws could not be applied to a
foreign leader whose alleged illegal activities all occurred outside the territorial bounds of the United States.
Counsel further argued that Noriega was immune from prosecution as a head of state and diplomat, and that
his alleged narcotics offenses constituted acts of state not properly reviewable by this Court.

Upon hearing arguments of counsel, and after due consideration of the memoranda filed, the Court denied
Defendant's motion, for reasons fully set forth below. At that time, the Court noted that this case was fraught
with political overtones, but that it was nonetheless unlikely that General Noriega would ever be brought to
the United States to answer the charges against him.[1]*1511 The former observation proved to be
considerably more correct than the latter, in light of subsequent events.

In the interval between the time the indictment was issued and Defendants were arrested, relations between
the United States and General Noriega deteriorated considerably. Shortly after charges against Noriega were
brought, the General delivered a widely publicized speech in which he brought a machete crashing down on
a podium while denouncing the United States. On December 15, 1989, Noriega declared that a "state of war"
existed between Panama and the United States. Tensions between the two countries further increased the
next day, when U.S. military forces in Panama were put on alert after Panamanian troops shot and killed an
American soldier, wounded another, and beat a Navy couple. Three days later, on December 20, 1989,
President Bush ordered U.S. troops into combat in Panama City on a mission whose stated goals 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. Before U.S. troops were engaged, American
officials arranged a ceremony in which Guillermo Endara was sworn in as president and recognized by the
United States as the legitimate head of the government of Panama. Endara was reported to have won the
Panamanian presidential election held several months earlier, the results of which were nullified and
disregarded by General Noriega.

Not long after the invasion commenced, Defendant Del Cid, the commander of about two thousand
Panamanian troops located in the Chiriqui Province, surrendered to American forces. He was then
transferred into the custody of agents from the United States Drug Enforcement Agency, who thereupon
arrested Del Cid for the offenses for which he is under indictment in this Court. The apprehension of General
Noriega was not quite so easy. He successfully eluded American forces for several days, prompting the
United States government to offer a one million dollar bounty for his capture. Eventually, the General took
sanctuary in the Papal Nunciature in Panama City, where he apparently hoped to be granted political asylum.
Noriega's presence in the Papal Nunciature touched off a diplomatic impasse and a round of intense
negotiations involving several countries. Vatican officials initially refused to turn Noriega over to the United
States. While he was still ensconced in the nunciature, American troops stationed outside pelted the
building with loud rock-and-roll music blasted through loudspeakers. The music was played continuously
for three days until church authorities protested the action as offensive. After an eleven-day standoff,
Noriega finally surrendered to American forces, apparently under pressure from the papal nuncio and
influenced by a threatening crowd of about 15,000 angry Panamanian citizens who had gathered outside the
residence. On January 3, 1990, two weeks after the invasion began, Noriega walked out of the Papal
Nunciature and surrendered himself to U.S. military officials waiting outside. He was flown by helicopter to
Howard Air Force Base, where he was ushered into a plane bound for Florida and formally arrested by
agents of the Drug Enforcement Agency. During the course of this litigation, which has included several
hearings, no evidence was presented nor suggestion made that Noriega was in any way physically
mistreated.

As is evident from the unusual factual background underlying this case, the Court is presented with several
issues of first impression. This is the first time that a leader or de facto leader of a sovereign nation has been
forcibly brought to the United States to face criminal charges. The fact that General Noriega's apprehension
occurred in the course of a military action only further underscores the complexity of the issues involved. In
addition to Defendant Noriega's motion to dismiss based on lack of jurisdiction over the offense and
sovereign immunity, Defendants Noriega and Del Cid argue that they are prisoners of war pursuant to the
Geneva Convention. This status, Defendants maintain, deprives the Court of jurisdiction to proceed with the
case. Additionally, Noriega contends that the military action which *1512 brought about his arrest is
"shocking to the conscience", and that due process considerations require the Court to divest itself of
jurisdiction over his person. Noriega also asserts that the invasion occurred in violation of international law.
Finally, Noriega argues that, even in the absence of constitutional or treaty violations, the Court should
dismiss the indictment pursuant to its supervisory powers so as to prevent the judicial system from being
party to and tainted by the government's alleged misconduct in arresting Noriega.[2] The Court examines
each of these issues, in turn, below.

I. JURISDICTION OVER THE OFFENSE

The first issue confronting the Court is whether the United States may exercise jurisdiction over Noriega's
alleged criminal activities. Noriega maintains that "the extraterritorial application of the criminal law is
unreasonable under the unique facts of this case, and cannot be relied upon to secure jurisdiction over a
leader of a sovereign nation who has personally performed no illegal acts within the borders of the United
States."[3] Although the defendant attempts to weave his asserted status as a foreign leader into his
challenge to the extraterritorial application of this country's criminal laws, the question of whether the United
States may proscribe conduct which occurs beyond its borders is separate from the question of whether
Noriega is immune from prosecution as a head of state. This distinction is made clear in the defendant's own
discussion of the applicable international law on extraterritorial jurisdiction, which does not look to a foreign
defendant's official status but rather to the nature and effect of the conduct at issue. The Court therefore
reserves analysis of Noriega's claim to head of state immunity and confines its discussion here to the ability
of the United States to reach and prosecute acts committed by aliens outside its territorial borders.[4] While
the indictment cites specific instances of conduct occurring within the United States, including the shipment
of cocaine from Panama to Miami and several flights to and from Miami by Noriega's alleged co-
conspirators, the activity ascribed to Noriega occurred solely in Panama with the exception of the one trip to
Cuba. Noriega is charged with providing safe haven to international narcotic traffickers by allowing Panama
to be used as a location for the manufacture and shipment of cocaine destined for this country's shores.

Where a court is faced with the issue of extraterritorial jurisdiction, the analysis to be applied is 1) whether
the United States has the power to reach the conduct in question under traditional principles of international
law; and 2) whether the statutes under which the defendant is charged are intended to have extraterritorial
effect. As Noriega concedes, the United States has long possessed the ability to attach criminal
consequences to acts occurring outside this country which produce effects within the United
States. Strassheim v. Daily, 221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed. 735 (1911); Restatement (Third) of
the Foreign Relations Law of the United States [hereinafter Restatement (Third)] ง 402(1) (c). For example,
the United States would unquestionably *1513 have authority to prosecute a person standing in Canada who
fires a bullet across the border which strikes a second person standing in the United States. See
Restatement (Third) ง 402, Comment d. "All the nations of the world recognize `the principle that a man who
outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the
evil is done ...'" Rivard v. United States, 375 F.2d 882, 887 (5th Cir.) (citations omitted), cert. denied, 389 U.S.
884, 88 S. Ct. 151, 19 L. Ed. 2d 181 (1967). The objective territorial theory of jurisdiction, which focuses on
the effects or intended effects of conduct, can be traced to Justice Holmes' statement that "[a]cts done
outside a jurisdiction, but intended to produce or producing 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." Strassheim v. Daily, 221 U.S. at 285, 31 S. Ct. at 560. See also Church v. Hubbart, 6 U.S. (2 Cranch)
187, 234, 2 L. Ed. 249 (1804) ("[a nation's] power to secure itself from injury may certainly be exercised
beyond the limits of its territory."). Even if the extraterritorial conduct produces no effect within the United
States, a defendant may still be reached if he was part of a conspiracy in which some co-conspirator's
activities took place within United States territory. United States v. Baker, 609 F.2d 134, 138 (5th Cir. 1980).
The former Fifth Circuit, whose decisions establish precedent for this Court, has on numerous occasions
upheld jurisdiction over foreigners who conspired to import narcotics into the United States but never
entered this country nor personally performed any acts within its territorial limits, as long as there was proof
of an overt act committed within the United States by a co-conspirator. See United States v. Postal, 589 F.2d
862 (5th Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 40 (1979); United States v. Cadena, 585
F.2d 1252 (5th Cir.1978); United States v. Winter, 509 F.2d 975 (5th Cir.), cert. denied, 423 U.S. 825, 96 S. Ct.
39, 46 L. Ed. 2d 41 (1975); Rivard v. United States, supra.

More recently, international law principles have expanded to permit jurisdiction upon a mere showing
of intent to produce effects in this country, without requiring proof of an overt act or effect within the United
States. See United States v. Wright-Barker, 784 F.2d 161, 168 (3rd Cir. 1986); United States v. Postal, 589 F.2d
at 886, n. 39; United States v. Columba-Colella, 604 F.2d at 358, 360. According to the Restatement (Third):

Cases involving intended but unrealized effect are rare, but international law does not preclude jurisdiction
in such instances, subject to the principle of reasonableness. When the intent to commit the proscribed act
is clear and demonstrated by some activity, and the effect to be produced by the activity is substantial and
foreseeable, the fact that a plan or conspiracy was thwarted does not deprive the target state of jurisdiction
to make its law applicable.

ง 402, Comment d.

In the drug smuggling context, the `intent doctrine' has resulted in jurisdiction over persons who attempted
to import narcotics into the United States but never actually succeeded in entering the United States or
delivering drugs within its borders. The fact that no act was committed and no repercussions were felt within
the United States did not preclude jurisdiction over conduct that was clearly directed at the United
States. United States v. Wright-Barker, supra ("The purpose of these [narcotics laws] is to halt
smugglers before they introduce their dangerous wares into and distribute them in this country.") (emphasis
in original); United States v. Quemener, 789 F.2d 145, 156 (2d Cir.), cert. denied, 479 U.S. 829, 107 S. Ct. 110,
93 L. Ed. 2d 58 (1986); United States v. Loalza-Vasquez, 735 F.2d 153, 156 (5th Cir.1984); United States v.
Baker, 609 F.2d at 138-39.

These principles unequivocally support jurisdiction in this case. The indictment charges Noriega with
conspiracy to import cocaine into the United States and alleges several overt acts performed within the
United States in furtherance of the conspiracy. Specifically, the indictment alleges that co-conspirators of
Noriega purchased *1514 a Lear jet in Miami, which was then used to transport drug proceeds from Miami to
Panama. Moreover, Noriega's activities in Panama, if true, undoubtedly produced effects within this country
as deleterious as the hypothetical bullet fired across the border. The indictment alleges that, as a result of
Noriega's facilitation of narcotics activity in Panama, 2,141 pounds of cocaine were illegally brought into
Miami from Panama. While the ability of the United States to reach and proscribe extraterritorial conduct
having effects in this country does not depend on the amount of narcotics imported into the United States or
the magnitude of the consequences, the importation of over 2,000 pounds of cocaine clearly has a harmful
impact and merits jurisdiction. Finally, 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.

The defendant's argument that the exercise of jurisdiction over his alleged activities in Panama is
unreasonable is simply unsupportable in light of established principles of international law and the
overwhelming case law in this Circuit upholding jurisdiction under similar circumstances.[5] Other than
asserting his status as a foreign leader, which presents a different question from the one posed here,
Noriega does not distinguish this case from those cited above. He cites the principle of reasonableness
recently articulated in the Restatement (Third) ง 403, but fails to say how extending jurisdiction over his
conduct would be unreasonable. In fact, the defendant's invocation of a reasonableness requirement
supports rather than undermines the application of jurisdiction in the present case. Thus, for example,
Noriega quotes the following language from the Restatement:

In applying the principle of reasonableness, the exercise of criminal (as distinguished from civil) jurisdiction
in relation to acts committed in another state may be perceived as particularly intrusive. * * * * * * It is
generally accepted by enforcement agencies of the United States government that criminal jurisdiction over
activity with substantial foreign elements should be exercised more sparingly than civil jurisdiction over the
same activity, and only upon strong justification.

Restatement (Third) ง 403, Reporters' Note 8. However, the same section of the Restatement establishes that
narcotics offenses provide the strong justification meriting criminal jurisdiction: "Prosecution for activities
committed in a foreign state have generally been limited to serious and universally condemned offenses,
such as treason or traffic in narcotics, and to offenses by and against military forces. In such cases the state
in whose territory the act occurs is not likely to object to regulation by the state concerned." Id. (citations
omitted). The Restatement therefore explicitly recognizes the reasonableness of extending jurisdiction to
narcotics activity such as that alleged here. See also United States v. Wright-Barker, 784 F.2d at 168
(construing ง 403 to permit jurisdiction *1515 over extraterritorial narcotics trafficking). Even if another state
were likely to object to jurisdiction here, the United States has a strong interest in halting the flow of illicit
drugs across its borders. In assessing the reasonableness of extraterritorial jurisdiction, one of the factors
to be considered is the character of the activity to be regulated, including the importance of regulation to the
regulating state and the degree to which the desire to regulate is generally accepted. Restatement (Third) ง
403(1) (c). The consensus of the American public on the need to stem the flow of drugs into this country is
well publicized and need not be elaborated upon in detail. Further, the Court notes that the United States has
an affirmative duty to enact and enforce legislation to curb illicit drug trafficking under the Single
Convention on Narcotics Drugs, 18 U.S.T. 1409, T.I.A.S. No. 6298, New York, March 30, 1961, ratified by the
United States, 1967, amended 26 U.S.T. 1441, T.I.A.S. No. 8118. See In re Grand Jury Proceedings Bank of
Nova Scotia, 740 F.2d 817, 830-31 (11th Cir.1984), cert. denied, 469 U.S. 1106, 105 S. Ct. 778, 83 L. Ed. 2d 774
(1985) (discussing the Single Convention on Narcotics Drugs). Given the serious nature of the drug epidemic
in this country, certainly the efforts of the United States to combat the problem by prosecuting conduct
directed against itself cannot be subject to the protests of a foreign government profiting at its expense. In
any case, the Court is not made aware of any instance in which the Republic of Panama objected to the
regulation of drug trafficking by the United States. In sum, because Noriega's conduct in Panama is alleged
to have resulted in a direct effect within the United States, the Court concludes that extraterritorial
jurisdiction is appropriate as a matter of international law.

This conclusion does not end the Court's analysis, however, since a further requirement is that the criminal
statutes under which the defendant is charged be intended to apply to conduct outside the United States.
Noriega is charged with violations of 21 U.S.C. ง 959 (distributing a controlled substance with the knowledge
that it would be unlawfully imported into the United States); 21 U.S.C. ง 952 (importing a controlled
substance into the United States from a place outside thereof); 21 U.S.C. ง 963 (conspiring to commit the
above offenses); and 18 U.S.C. ง 2 (aiding and abetting the violation of ง 959). The indictment also alleges
that Noriega participated in a pattern of racketeering activity consisting of the above crimes, in violation of
the Racketeer Influenced and Corrupt Organizations Act (RICO), งง 1962(c) and 1962(d), and caused the
travel and use of facilities in interstate and foreign commerce in furtherance of a narcotics conspiracy, in
violation of 18 U.S.C. ง 1952(a) (3).

Section 959, prohibiting the distribution of narcotics intending that they be imported into the United States,
is clearly meant to apply extraterritorially. The statute expressly states that it is "intended to reach acts of
manufacture or distribution committed outside the territorial jurisdiction of the United States." 21 U.S.C. ง
959(c). The remaining statutes, by contrast, do not on their face indicate an express intention that they be
given extraterritorial effect. Where a statute is silent as to its extraterritorial reach, a presumption against
such application normally applies. United States v. Benitez, 741 F.2d 1312, 1316-17 (11th Cir.1984), cert.
denied, 471 U.S. 1137, 105 S. Ct. 2679, 86 L. Ed. 2d 698 (1985). However, "such statutes may be given
extraterritorial effect if the nature of the law permits it and Congress intends it. Absent an express intention
on the face of the statutes to do so, the exercise of that power may be inferred from the nature of the
offenses and Congress' other legislative efforts to eliminate the type of crime involved." United States v.
Baker, 609 F.2d at 136. (citing United States v. Bowman, 260 U.S. 94, 97-98, 43 S. Ct. 39, 41, 67 L. Ed. 149
(1922).

With respect to 21 U.S.C. ง 952, it is apparent from the very nature of the offense that the statute was
intended to reach extraterritorial acts. Section 952 makes it unlawful to import narcotics "into the United
States from any place outside thereof .." (emphasis added). Because importation by definition involves acts
originating outside of the territorial limits of *1516 the United States, the Court can only infer that ง 952
applies to conduct which begins abroad; any interpretation to the contrary would render the statute virtually
meaningless. United States v. Cadena, 585 F.2d at 1259. With jurisdiction over the substantive violations of
งง 959 and 952 established, jurisdiction over the conspiracy and aiding and abetting counts likewise follows.
Since a conspiracy to commit an offense is closely related to the offense itself, courts have regularly inferred
the extraterritorial reach of the ง 963 conspiracy statute on the basis of a finding that the substantive
statutes apply abroad. See, e.g., Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert.
denied, 470 U.S. 1031, 105 S. Ct. 1403, 84 L. Ed. 2d 790 (1985); United States v. Baker, 609 F.2d at 139. The
same must be said for an aiding and abetting charge; if anything, the act of aiding and abetting is even more
intimately connected to the underlying crime. In short, the Court perceives no sound jurisdictional reason for
distinguishing the conspiracy and aiding and abetting charges from the substantive offense for purposes of
extraterritorial application. Section 963 and 18 U.S.C. ง 2 must therefore be given extraterritorial effect as
well.

Whether the RICO and Travel Act statutes reach conduct abroad is a more difficult question. None of the
cases cited by the parties address this point and the Court is unaware of any case reaching the issue.[6] The
question of these statutes' extraterritorial effect is therefore a matter of apparent first impression. For the
reasons stated below, the Court finds that RICO, 18 U.S.C. งง 1962(c) and (d), and the Travel Act, 18 U.S.C. ง
1952(a) (3), apply to conduct outside the United States.

Section 1962(c) makes it unlawful for "any person associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to conduct or participate ... in the conduct of such
enterprise's affairs through a pattern of racketeering activity ..." 18 U.S.C. ง 1962(c) (emphasis added).
Section 1962(d) similarly makes it illegal for "any person to conspire to violate" Section 1962(c). 18 U.S.C. ง
1962(d) (emphasis added). These prohibitions are on their face all-inclusive and do not suggest parochial
application. Indeed, if any statute reaches far and wide, it is RICO.[7]

When Congress passed RICO, it was primarily concerned with eradicating the destructive influence of
organized crime on our society:

(1) organized crime in the United States ... annually drains billions of dollars from America's economy ... (3)
this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions
and to subvert and corrupt our democratic processes; (4) organized crime activities in the United States
weaken the stability of the Nation's *1517 economic system, harm innocent investors and competing
organizations, interfere with free competition, seriously burden interstate and foreign commerce, and
undermine the general welfare of the Nation and its citizens.

RICO Statement of Findings and Purpose, Pub.L. No. 91-452, 84 Stat. 922 (1970), 91st Cong., 2d Sess.,
reprinted in 1970 U.S.Code Cong. & Admin.News 1073, 1073. Though its emphasis is on economic effects,
RICO itself is not so limited; it's history demonstrates concern with our domestic security and welfare as
well as our gross national product. Marcos III, 862 F.2d at 1366 (Schroeder, Circuit Judge, concurring in part
and dissenting in part).

While the Statement of Findings and Purpose speaks of criminal activities "in the United States," the Court
must be cognizant of the overall purpose of the Act and the extent to which Congress intended it have effect.
The legislative history leaves no doubt that RICO was to be read expansively as a means of attacking
organized crime at every level and on an unprecedented scope. Congress noted that:

What is needed here ... are new approaches that will deal not only with individuals, but also with the
economic base through which those individuals constitute such a serious threat to the economic well-being
of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must
take place on all available fronts.

S.Rep. No. 91-617, p. 76 (1969) (emphasis added). It is in this spirit of attacking crime "on all fronts" that all
of the Act's provisions must be read. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S. Ct. 3275, 3286,
87 L. Ed. 2d 346 (1985). Congress specifically admonished that "RICO be liberally construed to effectuate its
remedial purpose,"[8] and toward that end consciously constructed RICO in expansive and far-reaching
language. As the Seventh Circuit has observed:

[I]n RICO, we confront a statute which is ... above all, deliberately and extraordinarily broad ... In defining the
key terms of the statute, such as `person,' `enterprise,' and `racketeering activity,' and in leaving undefined
such broad terms as `conduct' and `participate,' Congress deliberately chose to employ broad terms which
would defy judicial confinement ... Congress [chose] to employ that extraordinarily broad language in order
to achieve its desired goals. In response to suggestions that the statute be more narrowly tailored to prevent
unexpected applications, Congress clearly preferred breadth to precision.
Haroco Inc. v. American National Bank & Trust Co., 747 F.2d at 398.

Given the Act's broad construction and equally broad goal of eliminating the harmful consequences of
organized crime, it is apparent that Congress was concerned with the effects and not the locus of
racketeering activities. The Act thus permits no inference that it was intended to apply only to conduct within
the United States. Such a narrow construction would frustrate RICO's purpose by allowing persons engaged
in racketeering activities directed at the United States to escape RICO's bite simply by moving their
operations abroad. Yet in the context of narcotics activities, perhaps the greatest threat to this country's
welfare comes from enterprises outside the United States such as the Colombian cocaine cartels. Keeping in
mind Congress' specific instruction that RICO be applied liberally to effect its remedial purpose, the Court
cannot suppose that RICO does not reach such harmful conduct simply because it is extraterritorial in
nature. As long as the racketeering activities produce effects or are intended to produce effects in this
country, RICO applies.

Noriega is also charged with violating the Travel Act, 18 U.S.C. ง 1952(a) (3), by causing foreign travel and
the use of facilities in foreign and interstate commerce to promote an unlawful activity. The indictment
alleges that, on two separate occasions, co-conspirators of Noriega used an airplane to transport drug
proceeds from Miami to Panama.

*1518 Like RICO, the Travel Act was originally designed to combat organized crime. Specifically, "the
purpose of the Travel Act was to aid local law enforcement officials. In many instances, the `top men' of a
given criminal enterprise resided in one State but conducted their illegal activities in another; by creating a
federal interest in limiting the interstate movement necessary to such operations, criminal conduct beyond
the reach of local officials could be controlled." United States v. Nardello, 393 U.S. 286, 290, 89 S. Ct. 534,
536, 21 L. Ed. 2d 487 (1969). The Act was thus an attempt to reach criminal activities uniquely broad and
transitory in scope, i.e., those whose influence extend beyond state and national borders and therefore
require federal assistance. S.Rep. No. 644, 87th Cong., 1st Sess., 4 (1961). While courts have sometimes, as
above, referred to persons "residing in one state," the Act itself indicates no such territorial limitation; the
reference is therefore more properly understood as calling attention to the interstate character of the activity
rather than the defendant's location. Stated more broadly, the Act "constitutes an effort to deny individuals
who act for criminal purposes access to the channels of commerce." Erlenbaugh v. United States, 409 U.S.
239, 246, 93 S. Ct. 477, 482, 34 L. Ed. 2d 446 (1972).

In this case, the defendant allegedly participated in a criminal syndicate which utilized the channels of
commerce to carry out illegal drug activities in the United States. His location may have differed from the
typical defendant charged under the Travel Act but the nature and effect of the alleged activity is the same,
and implicates the same congressional desire to reach conduct which transcends state lines both physically
and symbolically.

Support for extraterritorial application of ง 1952(a) (3) is also found in the statutory language, which
suggests no restriction based upon the locus of conduct other than that it result in activity crossing state
lines:[9]

The words of section 1952 are general; they contain no restriction to particular persons or to particular
kinds of gambling, liquor, narcotics, and prostitution offenses. ... [A]s we read the legislative record,
Congress meant exactly what the language of Section 1952 states โ€" it deliberately chose to make the
statute applicable generally, and without crippling restrictions, to any person engaged in any kind of illicit
business enterprise in one of the four fields of activity specified in the statute, which experience showed to
be those in which organized racketeers commonly engaged.
United States v. Roselli, 432 F.2d 879, 885 (9th Cir.1970), cert. den., 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d
828 (1971). The precise issue in Roselli involved the Travel Act's application to criminal activity
notwithstanding the defendant's lack of participation in a traditional organized syndicate, but the court's
analysis of the statute's liberal coverage seemingly applies here as well.[10] In short, the Court finds
that *1519 where, as here, the defendant causes interstate travel or activity to promote an unlawful purpose,
ง 1952(a) (3) applies, whether or not the defendant is physically present in the United States.

Jurisdiction over Defendant's extraterritorial conduct is therefore appropriate both as a matter of

international law and statutory construction.

II. SOVEREIGN IMMUNITY

The Court next turns to Noriega's assertion that he is immune from prosecution based on head of state
immunity, the act of state doctrine, and diplomatic immunity.

A. Head of State Immunity

Grounded in customary international law, the doctrine of head of state immunity provides that a head of
state is not subject to the jurisdiction of foreign courts, at least as to official acts taken during the ruler's
term of office. In re Grand Jury Proceedings, Doe # 700, 817 F.2d 1108, 1110 (4th Cir.), cert. denied, 484 U.S.
890, 108 S. Ct. 212, 98 L. Ed. 2d 176 (1987); In re Doe, 860 F.2d 40, 44-45 (2d Cir.1988). The rationale behind
the doctrine is to promote international comity and respect among sovereign nations by ensuring that
leaders are free to perform their governmental duties without being subject to detention, arrest, or
embarrassment in a foreign country's legal system.[11]In re Grand Jury Proceedings, Doe # 700, 817 F.2d at
1110; see generally, Note, Resolving the Confusion Over Head of State Immunity; The Defined Right of
Kings, 86 Colum.L.Rev. 169, 171-79 (1986).

In order to assert head of state immunity, a government official must be recognized as a head of state.
Noriega has never been recognized as Panama's Head of State either under the Panamanian Constitution or
by the United States. Title VI, Article 170 of the Panamanian Constitution provides for an executive branch
composed of the President and Ministers of State, neither of which applies to Noriega. Officially, Noriega is
the Commandante of the Panamanian Defense Forces,[12] but he was never elected to head Panama's
government and in fact abrogated the Panamanian presidential elections of May 7, 1989. More importantly,
the United States government has never accorded Noriega head of state status, but rather continued to
recognize President Eric Arturo Delvalle as the legitimate leader of Panama while Noriega was in power. As
this Court held in a previous case involving the Republic of Panama, the Executive's decision to recognize
President Delvalle and not the Defendant as Panama's head of state is binding on the Court. Republic of
Panama v. Air Panama, 745 F. Supp. 669 (S.D.Fla.1988). The ruling in that case โ€" which I find no reason to
depart from here โ€" was based on a line of case law holding that recognition of foreign governments and
their leaders is a discretionary foreign policy decision committed to the Executive Branch and thus
conclusive upon the courts. See Republic of Panama v. Citizens and Southern Int'l. Bank, 682 F. Supp. 1544,
1545 (S.D. *1520 Fla.1988); Ex parte Republic of Peru, 318 U.S. 578, 589, 63 S. Ct. 793, 800, 87 L. Ed. 1014
(1943); Banco De Espana v. Federal Reserve Bank, 114 F.2d 438, 442 (2d Cir. 1940); Guaranty Trust Co. v.
United States, 304 U.S. 126, 137, 58 S. Ct. 785, 791, 82 L. Ed. 1224 (1938); United States v. Belmont, 301 U.S.
324, 328, 57 S. Ct. 758, 759-60, 81 L. Ed. 1134 (1937); Jones v. United States, 137 U.S. 202, 212-214, 11 S. Ct.
80, 83-84, 34 L. Ed. 691 (1890). See also Republic of Mexico v. Hoffman, 324 U.S. 30, 35-36, 65 S. Ct. 530, 532-
33, 89 L. Ed. 729 (1945) ("It is therefore not for the courts to deny an immunity which our government has
seen fit to allow, or allow an immunity on new grounds which the government has not seen fit to
recognize.").
Aside from the fact that neither Panama nor the United States recognizes Noriega as a head of state, the
defendant concedes that he does not fit within traditional notions of a head of state as defined by customary
international law.[13] He nonetheless argues that he is entitled to head of state immunity as the de facto ruler
of Panama, "regardless of the source of his power or the nature of his rule." The defendant cites numerous
newspaper reports and excerpts of congressional testimony to the effect that Noriega effectively controlled
Panama. In fact, this Court has previously acknowledged that, despite the official recognition of Delvalle,
Noriega was the de facto head of Panama's government. United States v. Noriega, 683 F. Supp. at 1374, n. 3.
But simply because Noriega may have in fact run the country of Panama does not mean he is entitled to
head of state immunity, since the grant of immunity is a privilege which the United States may withhold from
any claimant.[14]The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812);
Note, Defined Right of Kings, supra at 188 ("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 of governments with which it does
not have diplomatic relations.") (emphasis added). Indeed, deference to the Executive branch in matters
concerning relations with foreign nations is the primary rationale supporting immunity for heads of
state. See Republic of Mexico v. Hoffman, supra; In re Doe, 860 F.2d at 45. Since the only reason Noriega
would be entitled to immunity as a head of state is because of such judicial deference to the Executive, his
claim to a "right" of immunity against the express wishes of the Government is wholly without merit.

The "head of state" argument comes to the Court unencumbered by evidence; the arguments were made
largely on the basis of general information made available by the media. However, accepting as true
statements of counsel regarding Defendant's position of power, to hold that immunity from prosecution
must be granted "regardless of his source of power or nature of rule" would allow illegitimate
dictators *1521 the benefit of their unscrupulous and possibly brutal seizures of power. No authority exists
for such a novel extension of head of state immunity, and the Court declines to create one here. Since the
United States has never recognized General Noriega as Panama's head of state, he has no claim to head of
state immunity.

B. The Act of State Doctrine

Noriega next argues that the act of state doctrine prohibits the Court from adjudicating the legality of his
official actions in Panama. Unlike head of state immunity, the act of state doctrine presents no jurisdictional
question but instead addresses the Court's permissible scope of inquiry into certain governmental acts. It is
more properly understood as an issue preclusion device rather than an immunity prohibiting
prosecution. Restatement (Third) ง 443, Reporters' Note 11. See also National American Corp. v. Federal
Republic of Nigeria, 448 F. Supp. 622, 640 n. 30 (S.D.N.Y.1978) (contrasting sovereign immunity with the act
of state doctrine), aff'd, 597 F.2d 314 (2d Cir.1979).

The classic expression of the doctrine is stated in Underhill v. Hernandez: "Every sovereign is bound to
respect the independence of every other sovereign State, and the courts of one country will not sit in
judgement on the acts of the government of another done within its own territory." 168 U.S. 250, 252, 18 S.
Ct. 83, 84, 42 L. Ed. 456 (1897). More than 60 years later, the Supreme Court reaffirmed the doctrine in Banco
Nacional de Cuba v. Sabbatino, in which case the Court refused to examine the Cuban government's taking
of property in Cuba owned by a Cuban corporation without compensation. 376 U.S. 398, 84 S. Ct. 923, 11 L.
Ed. 2d 804 (1964). See also Frolova v. Union of Soviet Socialist Republics, 558 F. Supp. 358, 364 (N.D.Ill.1983)
(act of state doctrine barred court from examining the Soviet Union's refusal to allow plaintiff's husband to
emigrate to the United States), aff'd, 761 F.2d 370 (7th Cir.1985); Banco De Espana v. Federal Reserve
Bank, 114 F.2d at 443 (court may not determine whether Spanish Finance Minister's alleged diversion of
silver was illegal under Spanish law); Hatch v. Baez, 7 Hun. 596 (N.Y.Sup.Ct.1876) (doctrine prevented court
from reviewing acts of former president of the Dominican Republic in his official capacity).
Although stated in terms of acts of the "State" or "sovereign," the doctrine also extends to governmental
acts of State officials vested with sovereign authority. Bernstein v. Van Heyghen Freres, S.A., 163 F.2d 246,
249 (2d Cir.), cert. denied, 332 U.S. 772, 68 S. Ct. 88, 92 L. Ed. 357 (1947); Banco De Espana v. Federal
Reserve Bank, 114 F.2d at 444. Whether such officials and their governments need be recognized or
"accepted" as such is unclear. The Court in Underhill, supra, held that the act of state doctrine "[cannot] be
confined to lawful or recognized governments ... The immunity of individuals from suits brought in foreign
tribunals for acts done within their own states, in the exercise of governmental authority, whether as civil
officers or military commanders, must necessarily extend to agents of governments ruling by paramount
force as a matter of fact." 168 U.S. at 252, 18 S. Ct. at 84. Sabbatino, however, indicates otherwise: "[T]he
Judicial Branch will not examine the validity of a taking of property within its own territory by a sovereign
foreign government, extant and recognized by this country at the time of suit ..." 376 U.S. at 428, 84 S. Ct. at
940. (emphasis added). Resolution of the two cases is unnecessary at this time, however, in light of the
Court's disposition below.

In order for the act of state doctrine to apply, the defendant must establish that his activities are "acts of
state," i.e., that they were taken on behalf of the state and not, as private acts, on behalf of the actor
himself. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 694, 96 S. Ct. 1854, 1861, 48 L. Ed.
2d 301 (1976). "That the acts must be public acts of the sovereign has been repeatedly affirmed." Marcos
I, 806 F.2d at 358. (emphasis in original). Though the distinction between the public and private acts of
government officials may prove elusive, this difficulty has not prevented courts from scrutinizing the
character of *1522 the conduct in question. Id. at 359 (distinguishing deposed Philippine President Ferdinand
Marcos' acts as head of state from his purely private acts); Dunhill, 425 U.S. at 695, 96 S. Ct. at 1862
(commercial activities are not acts of state); Sharon v. Time, Inc., 599 F. Supp. 538, 544-45 (S.D.N.Y. 1984)
(Defense Minister's alleged support of massacre was not the policy of Israeli government and therefore not
an act of state); De Roburt v. Gannett Co., 733 F.2d 701, 704 (9th Cir.1984) (act of state doctrine does not
apply to foreign ruler's private, unofficial acts), cert. denied, 469 U.S. 1159, 105 S. Ct. 909, 83 L. Ed. 2d 923
(1985); Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir.1962) (foreign dictator's financial crimes were
for his own personal benefit and therefore were not public acts sufficient to invoke act of state
defense), cert. denied, 373 U.S. 914, 83 S. Ct. 1302, 10 L. Ed. 2d 415 (1963).

The Court fails to see how Noriega's alleged drug trafficking and protection of money launderers could
conceivably constitute public action taken on behalf of the Panamanian state. Certainly no evidence has
been presented to this effect, despite Defendant's burden of proof on the issue. Dunhill, 425 U.S. at 694, 96 S.
Ct. at 1861. The indictment in this case charges a series of private acts committed by the defendant for his
own personal financial enrichment. It does not allege, and cannot reasonably be construed to charge, that
Noriega participated in a racketeering enterprise and conspired to import cocaine into the United States in
furtherance of Panama's state policy or to serve some overriding national interest. The fact that Noriega is
alleged to have utilized his official position to engage in criminal activity does not, as Defendant suggests,
cast his actions in a public light; as we well know, government officials are as capable of exploiting their
positions of power for private, selfish ends as they are for public purpose. The inquiry is not whether
Noriega used his official position to engage in the challenged acts, but whether those acts were taken on
behalf of Noriega instead of Panama.

Defendant does little more than state that, as the de facto ruler of Panama, his actions constitute acts of
state. This sweeping position completely ignores the public/private distinction and suggests that
government leaders are, as such, incapable of engaging in private, unofficial conduct. Aside from its lack of
logic, suffice it to say that this argument has been implicitly rejected in several cases distinguishing the
private from public conduct of heads of state and foreign dictators. See Marcos I, 806 F.2d at 359; Marcos
III, 862 F.2d at 1361; De Roburt v. Gannett Co., 733 F.2d at 704; Jimenez, 311 F.2d at 557-58. The notion that
Noriega, qua dictator, was essentially the sovereign and that all of his acts are therefore acts of state is most
thoroughly undermined by the Jimenez case, supra, an authoritative precedent directly contrary to Noriega's
position. In that case, the Republic of Venezuela alleged that Jimenez, its former president and dictator, had
used his position to commit financial crimes for his own personal benefit. Jimenez contended "that as a
`dictator' he himself would be the sovereign โ€" the government of Venezuela โ€" and that all his acts
constituting the financial crimes with which he is charged ... are acts of state or sovereign acts ..." Id. at 557.
The Fifth Circuit took issue:

Even though characterized as a dictator, appellant was not himself the sovereign โ€"government โ€" of
Venezuela within the Act of State Doctrine. He was chief executive, a public officer, of the sovereign nation
of Venezuela. It is only when officials having sovereign authority act in an official capacity that the Act of
State Doctrine applies. Appellant's acts constituting the financial crimes ... were not acts of Venezuela
sovereignty ... [E]ach of these acts was "for the private financial benefit" of the appellant. They constituted
common crimes committed by the Chief of State in violation of his position and not in pursuance of it. They
are as far from being an act of state as rape ...

Id. at 557-58.

No fundamental difference separates this case from Jimenez. Nor is the Court persuaded by the Ninth
Circuit's decision in Marcos II, supra, upon which Defendant *1523 heavily relies. The court in that case held
that deposed dictator Ferdinand Marcos' alleged theft and conversion of property and funds belonging to the
Philippine republic were acts of state since "they are activities that Marcos could only have undertaken
pursuant to his powers as President of the Philippines." 818 F.2d at 1479. In a lengthy dissent, Judge Nelson
persuasively argued that the majority opinion effectively eviscerated the public/private distinction by
providing blanket protection to all of Marcos' acts during his reign. On rehearing en banc (which occurred
after defense counsel's brief was submitted), the Ninth Circuit reversed this aspect of its decision and
essentially adopted Judge Nelson's position, holding that Marcos had not established that the alleged thefts
were public acts. As the Court stated: "Our courts have had no difficulty distinguishing the legal acts of a
deposed ruler from his acts for personal profit that lack a basis in law." Marcos III, 862 F.2d at 1361. Marcos
II is thus of no precedential value on this question.

Yet another consideration counsels against application of the act of state doctrine to this case. Although
originally couched in terms of sovereign immunity, the doctrine as presently developed does not rest on
principles of international law or respect for sovereign independence. More recent interpretations of the
doctrine instead emphasize the separation of powers rationale โ€" more specifically, the need to preclude
judicial encroachment in the field of foreign policy and international diplomacy. See Sabbatino, 376 U.S. at
421-23, 84 S.Ct. at 936-37; In re Grand Jury Proceedings Bank of Nova Scotia, 740 F.2d at 831; International
Ass'n of Machinists & Aerospace Workers v. OPEC, 649 F.2d 1354, 1358 (9th Cir.1981), cert. denied, 454 U.S.
1163, 102 S. Ct. 1036, 71 L. Ed. 2d 319 (1982); Marcos III, supra ("The doctrine is meant to facilitate the
foreign relations of the United States, not to furnish the equivalent of sovereign immunity to a deposed
ruler."). In questioning the validity of acts of foreign states, the judiciary may well hinder the Executive's
conduct of foreign affairs and the need to speak with one voice on the world stage. No such danger is
present here and in fact the opposite is true since the Executive's position is amply demonstrated by its
decision to indict and prosecute the defendant. See United States v. Evans, 667 F. Supp. 974, 987 (S.D.
N.Y.1987). Of course, the Executive's position, though relevant, is not dispositive. Marcos I, 806 F.2d at 358.
"Whether to invoke the act of state doctrine is ultimately and always a judicial question." Allied Bank
International v. Banco Credito Agricola de Cartago, 757 F.2d 516, 521 n. 2 (2d Cir.), cert. dismissed, 473 U.S.
934, 106 S. Ct. 30, 87 L. Ed. 2d 706 (1985). The Court simply notes that this case does not present the
possibility of interference with the Executive branch that might otherwise exist. The Court need not rest on
this finding, however, since it concludes that Noriega has not demonstrated that his alleged drug-related
activities were in fact acts of state rather than measures to further his own private self-interest. Absent such
showing, the act of state doctrine cannot apply.

C. Diplomatic Immunity

Noriega concedes at the outset that his assertion of diplomatic status does not fit within the confines of
either the Diplomatic Relations Act[15] or the Vienna Convention on Diplomatic Relations,[16] the two bodies of
law governing diplomatic privileges and immunities. Among other deficiencies, the government of Panama
never requested that Noriega be accredited as a diplomat and the United States at no time granted Noriega
such status, as required by the Convention, Articles 9 and 10.[17] Nor did Noriega ever meet the Department
of State's standards for accreditation, which require, inter alia, that the individual reside in the Washington
D.C. area and devote official activities to diplomatic *1524 functions on an essentially full-time basis.[18] As
Defendant himself states, "[d]iplomatic immunity generally deals with eligible persons who are present in the
United States."[19] In this case, Noriega was neither eligible nor present in this country as a diplomat.

In light of his failure to satisfy the conventional requirements for diplomatic status, Noriega relies principally
on the fact that he traveled on a Panamanian diplomatic passport and was on three occasions granted an "A-
2" visa by the United States. In the first place, issuance of the Panamanian diplomatic passport is a matter
solely of Panamanian law and has no effect on its holder's status in another state. Though diplomatic
passports issued by Panama to reflect the esteem which that nation assigned to Defendant may have
obtained Noriega certain courtesies in international travel, they are without significance in international law
and United States law and do not, by themselves, entitle Noriega to any internationally or domestically
protected status. "Generally, a sending state issues a diplomatic passport to its diplomatic agent and the
receiving state gives him a diplomatic visa, but such passports and visas are sometimes issued as a
courtesy also to persons other than diplomats, and they do not prove that the holder enjoys diplomatic
status or is entitled to diplomatic privileges and immunities in the receiving state." Restatement (Third) ง
464, Reporters' Note 1 (citing United States v. Arizti, 229 F. Supp. 53 (S.D.N.Y.1964), and United States v.
Coplon, 88 F. Supp. 915 (S.D.N.Y.1950)). Mere issuance of the passport does not constitute the necessary
notification and request for accreditation and, assuming arguendo it did, it has no effect in the absence of
acceptance as such by the United States. Restatement (Third) ง 464, Reporters' Note 1 ("A person accredited
by the sending state does not become a diplomatic agent for purposes of this section unless the receiving
state agrees.").

Nor does the "A-2" visa establish anything of significance in the way of diplomatic immunity. The issuance
of United States visas is an administrative action in connection with United States immigration law and is
quite independent of the process of diplomatic accreditation. In October 1985, the Department of State
reminded all diplomatic missions in the United States by diplomatic note that:

"[U]nder U.S. law, the issuance of visas is a procedure by which immigration to and visits in the United
States are administratively controlled. * * * * Under the applicable regulations A-category visas are issued to
thousands of persons each year, many of whom never perform diplomatic or consular functions in the
United States. * * * * The mere possession of an A-category visa by a person not accredited to the United
States in accordance with these procedures [promulgated by the Chief of Protocol] gives such person no
claim to diplomatic or consular status in the United States, and thus no entitlement to the privileges and
immunities extended to persons in diplomatic or consular status."[20]

In other words, mere possession of an "A-2" visa does not confer diplomatic immunity; other criteria, none
of which are satisfied here, must be met. See United States v. Kostadinov, 734 F.2d 905, 912 (2d Cir.), cert.
denied, 469 U.S. 881, 105 S. Ct. 246, 83 L. Ed. 2d 184 (1984); United States v. Arizti, 229 F.Supp. at 54-
55; United States v. Coplon, 88 F. Supp. at 920. For example, Defendant has presented no proof that the
United States government accepted him as a member of the Panamanian diplomatic mission, supplied him
with a diplomatic identity card, or included him on any official diplomatic list. Absent these indicia of
diplomatic status, the "A-2" visa *1525 is plainly inadequate. Defendant's claim to diplomatic immunity must
therefore fail.

III. DEFENDANTS' PRISONER OF WAR STATUS

Defendants Noriega and Del Cid contend that they are prisoners of war ("POW") within the meaning of the
Geneva Convention Relative to the Treatment of Prisoners of War, (Geneva III),[21] a status, Defendants
maintain, which divests this Court of jurisdiction to proceed with this case. For the purposes of the motion at
bar, the Government does not maintain that Defendants are not prisoners of war, but rather argues that even
were Defendants POWs, the Geneva Convention would not divest this Court of jurisdiction. Thus, the Court
is not presented with the task of determining whether or not Defendants are POWs under Geneva III, but
proceeds with the motion at bar as if Defendants were entitled to the full protection afforded by the
Convention.[22] Defendants' arguments under the Geneva Convention are grounded in Articles 82, 84, 85, 87,
and 99, and 22, each of which is examined, in turn, below.

x. Article 82 A prisoner of war shall be subject to the laws, regulations and orders in force in the armed
forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary
measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders.
However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed. If any
law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be
punishable, whereas the same acts would not be punishable if committed by a member of the forces of the
Detaining Power, such acts shall entail disciplinary punishments only.

As is evident from its face, Article 82 pertains to disciplinary and penal procedures against POWs for
offenses committed after becoming POWs, allowing for prosecutions against POWs only for acts which
would be prosecutable against a member of the detaining forces. Thus, Article 82 is clearly inapplicable to
the instant case because Noriega and Del Cid are being prosecuted not for offenses committed after their
capture but for offenses committed well before they became prisoners of war.

x. Article 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. In no
circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the
essential guarantees of independence and impartiality as generally recognized and, in particular, the
procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

Under 18 U.S.C. ง 3231, federal district courts have concurrent jurisdiction with military courts over all
violations of the laws of the United States committed by military personnel.[23] The indictment *1526 charges
Defendants with various violations of federal law, including narcotics trafficking, RICO violations, and RICO
conspiracy. These are allegations of criminal misconduct for which any member of the United States Armed
Forces could be prosecuted. Consequently, the prohibition embodied in Article 84, paragraph 1 does not
divest this Court of jurisdiction.

It has not been argued by Defense Counsel that the district court does not offer the essential guarantees of
independence and impartiality "as generally recognized ..." Neither do Defendants contend that they will not
be afforded the full measure of rights provided for in Article 105. Those rights include representation of
counsel and prior notification of charges. See 6 U.S.T. at 3396. Indeed, Defendants will enjoy the benefit of all
constitutional guarantees afforded any person accused of a federal crime.
 x. Article 85 Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to
capture shall retain, even if convicted, the benefits of the present Convention.

Rather than supporting Defendants' overall position pressed under the Geneva Convention, this Article
appears to recognize the right to prosecute asserted by the Government. The Article refers to "prisoners ...
prosecuted under the laws of the Detaining Power" (i.e., the United States) and for acts "committed prior to
capture." Further, the benefits of the Convention shall be afforded the POW "even if convicted." The
indictment charges the Defendants with violations of the laws of the United States allegedly committed
between December 1982 and March 1986 โ€" well before the military action and apprehension by
surrender.[24]

x. Article 87 Prisoners of war may not be sentenced by the military authorities and courts of the Detaining
Power to any penalties except those provided for in respect of members of the armed forces of said Power
who have committed the same acts ...

Article 82 reflects the principle of "equivalency" embodied in other Articles of the Convention. That principle
provides that, in general, prisoners of war may be prosecuted for criminal violations only if a member of the
armed forces of the detaining country would be subject to like prosecution for the same conduct. The
specific application of the `equivalency principle' in Article 87 prevents prisoners of war from being subject
to penalties not imposed on the detaining power's soldiers for the same acts. Assuming Defendants are
convicted of one or more of the crimes with which they are charged, they face criminal sentences no greater
nor less than would apply to an American soldier convicted of the same crime. The instant prosecution is
therefore consistent with the provisions of Article 87.

x. Article 99 No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the
Detaining Power or by international law, in force at time the said act was committed. No moral or physical
coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of
which he is accused. No prisoner of war may be convicted without having had an opportunity to present his
defence and the assistance of a qualified advocate or counsel.

Article 99 proscribes the prosecution of prisoners of war under ex post facto laws, and prohibits coerced
confessions. This Article further codifies other fundamental rights secured to any criminal defendant under
the Constitution of the United States of America. All accused defendants, "prisoner of war" status
notwithstanding, are guaranteed these basic protections.

The Defense has not contended, and of course cannot contend, that the narcotics *1527 offenses with which
Defendants are charged were permitted under U.S. law at the time the acts were allegedly committed. Neither
has there been any assertion that Defendants were coerced into admitting guilt or that any effort was made
in that direction. Defendants are represented by competent counsel and are being afforded all rights to
which they are entitled under the law. Article 99 thus does not operate to divest the Court of jurisdiction.

x. Article 22 Prisoners of war may be interned only in premises located on land and affording every
guarantee of hygiene and healthfulness. Except in particular cases which are justified by the interest of the
prisoners themselves, they shall not be interned in penitentiaries. Prisoners of war interned in unhealthy
areas, or where the climate is injurious for them, shall be removed as soon as possible to a more favourable
climate. The Detaining Power shall assemble prisoners of war in camps or camp compounds according to
their nationality, language and customs, provided that such prisoners shall not be separated from prisoners
of war belonging to the armed forces with which they were serving at the time of their capture, except with
their consent.
Defendants maintain that Article 22 deprives the Court of personal jurisdiction by requiring that they be
returned to Panama and detained along with other Panamanian prisoners of the armed conflict. The Court
perceives no such requirement in Article 22, which relates to the general conditions, and not the location, of
internment. The provision upon which Defendants rely states that prisoners shall not be interned with
persons of different nationality, language, and customs, and "shall not be separated from prisoners of war
belonging to the armed forces with which they were serving at the time of their capture." 6 U.S.T. at 3336.
According to Defendants' interpretation, Article 22 would require that all prisoners of war from the same
armed forces be interned together in a single prisoner of war facility. Yet this clearly cannot be Article 22's
intent, since internment under those conditions would likely violate its overall concern for healthy and
comfortable conditions of internment. Indeed, Defendant Noriega undercuts his own argument by
suggesting that he be detained in an agreeable third country, an action which would certainly separate him
from members of Panama's armed forces being detained in Panama. The more obvious interpretation of the
provision that it prevents prisoners belonging to the armed forces of one nation from being forcibly interned
with prisoners from the armed forces of another nation. Such is not the case here.

Moreover, nothing in Article 22 or elsewhere prohibits the detaining power from temporarily transferring a
prisoner to a facility other than an internment camp in connection with legal proceedings. Because the
Convention contemplates that prisoners of war may be prosecuted in civilian courts, it necessarily permits
them to be transferred to a location that is consistent with the orderly conduct of those proceedings. It is
inconceivable that the Convention would permit criminal prosecutions of prisoners of war and yet require
that they be confined to internment camps thousands of miles from the courthouse and, quite possibly,
defense counsel.

The remaining provisions of the Convention cited by Defendant Noriega lend little, if any, support to his
argument regarding jurisdiction. Article 12 of the Convention, which Noriega contends mandates his removal
to a third country, in fact limits the ability of the United States to effect such a transfer:

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the
Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee
Power to apply the Convention. When prisoners of war are transferred under such circumstances,
responsibility for the application of the Convention rests on the Power accepting them while they are in
custody.

6 U.S.T. at 3328.

Finally, Noriega cites Article 118 of the Convention, which requires prisoners *1528 of war to be released and
repatriated "without delay after the cessation of active hostilities." 6 U.S.T. at 3406. That provision is,
however, limited by Article 119, which provides that prisoners of war "against whom criminal proceedings
for an indictable offense are pending may be detained until the end of such proceedings, and, if necessary,
until the completion of the punishment." 6 U.S.T. at 3408. Since criminal proceedings are pending against
Noriega, Article 119 permits his detainment in the United States notwithstanding the cessation of hostilities.

x. Extradition Treaty Between Panama and the United States

Defendants argue that Geneva III operates to divest this Court of jurisdiction over Defendants because they
could not have been extradited from Panama to the United States for the crimes with which they are charged.
The genesis of Defendants argument is not in the language of the Convention, but rather is found in the Red
Cross Commentary on Geneva III (the "Commentary") which, in discussing Article 85, states that:
[I]n general, acts not connected with the state of war may give rise to penal proceedings only if they are
punishable under the laws of both the Detaining Power and the Power of origin. As a parallel, reference may
be had to extradition agreements or to the customary rules concerning extradition. An act in respect of
which there could be no extradition should not be punished by the Detaining Power. One may also examine
whether prosecution would have been possible in the country of origin. If the answer is in the negative, the
prisoner of war should not be tried by the Detaining Power.

III International Committee of the Red Cross, Commentary on the Geneva Convention Relative to the
Treatment of Prisoners of War, 419, J. Pictet (Ed.1960).

First, it must be underscored that the Red Cross Commentary is merely a discussion suggesting what the
author believes should or should not be done as a matter of policy; the Commentary is not part of the treaty.
Nowhere does the text of Geneva III purport to limit the jurisdiction of domestic courts to extraditable
offenses. Defendants would infer this limitation from Commentary on the Geneva Convention. The Supreme
Court has, however, held that in order for an international treaty to divest domestic courts of jurisdiction, the
treaty must expressly provide for such limitation:

If [the defendant] committed an offense against the United States and its liquor importation laws, [he]
cannot escape conviction, unless the treaty affirmatively confers on [him] immunity from prosecution. There
certainly are no express words granting such immunity. Why should it be implied? If it was intended by the
parties why should it not have been expressed?

Ford v. United States, 273 U.S. 593, 611, 47 S. Ct. 531, 537, 71 L. Ed. 793 (1927); See also United States v.
Postal, 589 F.2d at 875-876 n. 19.

Moreover, the Commentary itself does not support Defendants' position. The Commentary suggests that
extradition treaties in existence may serve as a guiding "reference" in determining what acts should be
punishable by the Detaining Party. Defendants entire argument is premised on the observation that the act of
narcotics trafficking is not one of the thirteen crimes listed in the extradition treaty between Panama and the
United States. Defendants overlook, however, the fact that the narcotics offenses with which Defendants are
charged not only constitute the kinds of offenses which could be the subject of extradition under customary
international law, but are specifically contemplated by subsequent treaties between the United States and
Panama. Under Article 36 of the Single Convention on Narcotic Drugs, Mar. 30, 1961, 18 U.S.T. 1407 T.I. A.S.
No. 6298, as amended by the Protocol Amending the Single Convention on Narcotic Drugs, Mar. 25, 1972, 26
U.S.T. 1441, T.I.A.S. No. 8118, offenses relating to the production, possession and distribution of narcotics
are "deemed to be included as an extraditable offence in any extradition treaty between the Parties." 26
U.S.T. at 1451-1452. Furthermore, in the event an *1529 offender is not extradited, Article 36 of the Single
Convention on Narcotics Drugs specifically provides that the offender "shall be prosecuted by the Party in
whose territory the offence was committed." Id. at 1452. Thus, the Single Convention amends the Extradition
Treaty of 1904 between the United States and Panama to include narcotics offenses, and also makes clear
that such offenses constitute prosecutable crimes in both Panama and the United States.

As is evident from its text and construed as a whole, the essential purpose of the Geneva Convention
Relative to the Treatment of Prisoners of War is to protect prisoners of war from prosecution for conduct
which is customary in armed conflict. The Geneva Convention was never intended, and should not be
construed, to provide immunity against prosecution for common crimes committed against the detaining
power before the outbreak of military hostilities. It therefore has no application to the prosecution of
Defendants for alleged violations of this country's narcotics laws. Indeed, the Court has not been presented
with any provision of the Convention which suggests or directs that this proceeding is one which, in
deference to the Convention, should be terminated.
The humanitarian character of the Geneva Convention cannot be overemphasized, and weighs heavily
against Defendants' applications to the Court. The Third Geneva Convention was enacted for the express
purpose of protecting prisoners of war from abuse after capture by a detaining power. The essential
principle of tendance liberale, pervasive throughout the Convention, promotes lenient treatment of prisoners
of war on the basis that, not being a national of the detaining power, they are not bound to it by any duty of
allegiance. Hence, the "honorable motives" which may have prompted his offending act must be
recognized.[25] That such motives are consistent with the conduct and laws of war is implicit in the principle.
Here, the Government seeks to prosecute Defendants for alleged narcotics trafficking and other drug-related
offenses โ€" activities which have no bearing on the conduct of battle or the defense of country. The fact that
such alleged conduct is by nature wholly devoid of "honorable motives" renders tendance
liberale inapposite to the case at bar.

IV. ILLEGAL ARREST

Noriega also moves to dismiss the indictment on the ground that the manner in which he was brought before
this Court โ€" as a result of the United States government's invasion of Panama โ€" is "shocking to the
conscience and in violation of the laws and norms of humanity." He argues that the Court should therefore
divest itself of jurisdiction over his person. In support of this claim, Noriega alleges that the invasion of
Panama violated the Due Process Clause of the Fifth Amendment of the United States Constitution, as well
as international law. Alternatively, he argues that even in the absence of constitutional or treaty violations,
this Court should nevertheless exercise its supervisory authority and dismiss the indictment so as to
prevent the Court from becoming a party to the government's alleged misconduct in bringing Noriega to trial.

A. The Fifth Amendment Due Process Argument

It is well settled that the manner by which a defendant is brought before the court normally does not affect
the ability of the government to try him. The Ker-Frisbie doctrine, as this rule has come to be known,
provides that a court is not deprived of jurisdiction to try a defendant on the ground that the defendant's
presence before the court was procured by unlawful means. Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L.
Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952). This Circuit's adherence to
the Ker-Frisbie doctrine was firmly established in United States v. Winter, in which the former Fifth Circuit
declared:

[W]e are convinced that under well established case law of the Supreme Court and this Circuit, a defendant
in a criminal *1530 trial whether citizen or alien, whether arrested within or beyond the territory of the United
States, may not successfully challenge the District Court's jurisdiction over his person on the grounds that
his presence was unlawfully secured.

509 F.2d at 985-86. See also United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir.1986), cert. denied, 480
U.S. 919, 107 S. Ct. 1377, 94 L. Ed. 2d 692 (1987); United States v. Postal, 589 F.2d at 873 ("A defendant may
not ordinarily assert the illegality of his obtention to defeat the court's jurisdiction over him."). Thus, in order
to divest the Court of jurisdiction, it is not enough for the defendant to assert, without more, that his arrest
was illegal.

Noriega does not challenge the validity of the Ker-Frisbie rule but instead relies on what is commonly
referred to as the Toscanino exception carved out by the Second Circuit. United States v. Toscanino, 500
F.2d 267 (2d Cir.1974). In that case, which also involved a challenge to a court's exercise of personal
jurisdiction, the defendant contended that his presence was illegally obtained through torture and abuse. In
support of his claim, the defendant offered to prove that United States officials abducted him from Uruguay
and subjected him to extensive and continuous torture, including pinching his fingers with metal pliers,
flushing alcohol into his eyes and nose, forcing other fluids up his anal passage, and attaching electrodes to
his extremities and genitals. Id. at 270. Confronted with these allegations, the court refused to permit the
government the fruits of its misconduct, holding that "we view due process as now requiring a court to
divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the
government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional
rights." Id. at 275. In so holding, the court relied on the Supreme Court's decision in Rochin v.
California, where the Due Process Clause was applied to "the whole course of the proceedings in order to
ascertain whether they offend those canons of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most heinous offenses." 342 U.S. 165, 172-73,
72 S. Ct. 205, 209-10, 96 L. Ed. 183 (1952).

The type of governmental conduct necessary to invoke the Toscanino exception and warrant the drastic
remedy of dismissal was subsequently clarified and narrowed by the Second Circuit in United States ex rel.
Lujan v. Gengler, 510 F.2d 62 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S. Ct. 2400, 44 L. Ed. 2d 668 (1975)
[hereinafter Lujan v. Gengler]. There, the Court held that due process is violated and dismissal warranted
only where the defendant proves "torture, brutality, and similar outrageous conduct." Id. at 65. The conduct
must "shock the conscience." Id. Noriega asserts that the deaths, casualties, and destruction of property
caused by the United States military action in Panama is "shocking to the conscience" and therefore falls
within the Toscanino exception as narrowed by Lujan v. Gengler.

Before addressing the substance of Noriega's claim, the Court is faced with the threshold issue of
Toscanino's continued vitality in light of subsequent Supreme Court and Eleventh Circuit decisions. The
Government argues that Toscanino has been undermined by the Supreme Court, citing in particular the
Court's holdings in INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984), and United
States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). In Lopez-Mendoza, the INS arrested the
defendant, an illegal alien, after searching his place of employment without a search or arrest warrant and
without the consent of the defendant's employer. In reversing the lower court's ruling vacating the
defendant's deportation order, the Court held that "the `body' or identity of a defendant or respondent in a
criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded
that an unlawful arrest, search, or interrogation occurred." 468 U.S. at 1039, 104 S. Ct. at 3483-84. Similarly,
in Crews, the Court ruled that the defendant could not claim immunity from prosecution simply because his
appearance in court was precipitated by an illegal arrest, stating: "Respondent himself is not a
suppressible *1531 `fruit,' and the illegality of his detention cannot deprive the Government of the
opportunity to prove his guilt through the introduction of evidence wholly untainted by police misconduct."
445 U.S. at 474, 100 S. Ct. at 1252.[26] In that case, the defendant objected to an in-court identification as the
product of an arrest without probable cause.

These cases are distinguishable from Toscanino and therefore do not prove the Government's point; neither
involved the type of inhumane governmental conduct "shocking to the conscience" to which Toscanino was
addressed and, as such, merely reaffirmed the general Ker-Frisbie rule that an illegal arrest, without
more, does not bar prosecution. As Toscanino establishes, there is a difference between conduct which is
merely illegal and conduct so egregious it shocks the conscience.

The Government next argues that, even if good law, Toscanino has nonetheless been rejected by this
Circuit. In United States v. Rosenthal, 793 F.2d at 1232, the Eleventh Circuit Court of Appeals stated that
"[t]his court has declined to adopt the Toscanino approach," citing its previous decision in United States v.
Darby, 744 F.2d 1508 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S. Ct. 2322, 85 L. Ed. 2d 841 (1985). The
court in Darby, however, rejected only a broad reading of Toscanino, stating explicitly that it "has not ruled
out the possibility of a narrow exception to the Ker-Frisbie doctrine for extreme cases ..." Id. at 1531. The
defendant in Darby claimed that he was forcibly abducted from Honduras and brought to stand trial in the
United States, but did not allege the sort of "shocking governmental conduct sufficient to convert an
abduction which is simply illegal into one that sinks to a violation of due process." Id. n. 20 (quoting Lujan v.
Gengler, 510 F.2d at 66). Thus, the court held, relief would not be warranted "if we were to follow the Second
Circuit." Id. at 1531. (emphasis added). Moreover, Rosenthal itself did not squarely face the issue since the
conduct complained of did not involve the type of brutal treatment allegedly suffered by Toscanino. 793 F.2d
at 1232. Following the Eleventh Circuit's decision in Darby, this Court likewise declines to rule out the
possibility of a Toscanino exception in circumstances of extreme and outrageous government conduct. But
see Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir.1990). As Justice Rehnquist has stated, there
may be situations "in which the conduct of law enforcement agents is so outrageous that due process
principles would absolutely bar the government from invoking judicial process to obtain a
conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973). The
case at bar, however, does not present such a situation, since Noriega does not, and presumably cannot,
allege that the Government's invasion of Panama violated any right personal to him, as required by the Due
Process Clause of the Fifth Amendment. The defendant does not claim that he was personally mistreated in
any manner incident to his arrest, at least not in any manner nearly approaching the egregious physical
abuse stated in Toscanino.[27] Rather, Noriega bases his due process claim on the rights of third parties, to
wit, those Panamanian citizens who were killed, injured, or had their property destroyed *1532 as a
consequence of the invasion.[28] The applicable cases suggest, however, that the limitations of the Due
Process Clause "come into play only when the Government activity in question violated some protected
right of the defendant." United States v. Payner, 447 U.S. 727, 737 n. 9, 100 S. Ct. 2439, 2447 n. 9, 65 L. Ed. 2d
468 (1980) (emphasis in original) (citing Hampton v. United States, 425 U.S. 484, 490, 96 S. Ct. 1646, 1650, 48
L. Ed. 2d 113 (1976) (plurality opinion)). Nothing in Toscanino or in the other decisions cited by Noriega
undermines that principle or in any way suggests that the due process rights of third parties may be
vicariously asserted, as those cases all involve physical violation of the defendant's person. See,
e.g., Rochin v. California, supra (forcible removal of evidence from defendant's stomach by government
agents held to violate due process); United States v. Toscanino, supra (allegations of severe physical torture
of a defendant by government agents sufficient to state a due process claim); United States v. Fernandez-
Caro, 677 F. Supp. 893 (S.D.Tex.1987) (same).

Moreover, while the Supreme Court has under certain limited circumstances allowed one party standing to
assert another party's rights, see, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947,
104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510
(1965); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953), the doctrine of `third-party' or
`jus tertii' standing addresses only the question of the identity of the party who may raise a legal claim; it
does not give rise to an expansion of the right or remedy in question if the claim is sustained. Here, Noriega
is not merely invoking the due process rights of third parties, but further urges that the indictment against
him be dismissed as a result of alleged violations of those rights. However, none of the Panamanian victims
whose rights, if any, Noriega asserts are being indicted or subjected to jurisdiction in this Court; in this
context, the only party interested in having the indictment against Noriega dismissed is Noriega. Thus,
Noriega does not just seek to provide a vehicle through which the rights of others can be adjudicated;
instead, he is attempting to extend the substantive reach of the Due Process Clause and the `third-party'
standing doctrine to encompass an expansion, as opposed to a mere assertion, of third-party rights and
remedies. Nothing in the `third-party' standing cases upon which Noriega relies provide support for that
ambitious undertaking. To the extent, then, that Toscanino requires a court to divest itself of jurisdiction
over a person whose due process rights have been violated, it is of no aid to the defendant in this case.

B. Violations of International Law

In addition to his due process claim, Noriega asserts that the invasion of Panama violated international
treaties and principles of customary international law โ€" specifically, Article 2(4) of the United Nations
Charter,[29] Article 20[17] of the Organization of American States Charter,[30] Articles *1533 23(b) and 25 of the
Hague Convention,[31] Article 3 of Geneva Convention I, and Article 6 of the Nuremberg Charter.[32]

Initially, it is important to note that individuals lack standing to assert violations of international treaties in
the absence of a protest from the offended government. Moreover, the Ker-Frisbie doctrine establishes that
violations of international law alone do not deprive a court of jurisdiction over a defendant in the absence of
specific treaty language to that effect. United States v. Postal, 589 F.2d at 875-76 n. 19; Cook v. United
States, 288 U.S. 102, 53 S. Ct. 305, 77 L. Ed. 641 (1933); Ford v. United States, 273 U.S. at 611, 47 S. Ct. at 537.
To defeat the Court's personal jurisdiction, Noriega must therefore establish that the treaty in question is
self-executing in the sense that it confers individual rights upon citizens of the signatory nations, and that it
by its terms expresses "a self-imposed limitation on the jurisdiction of the United States and hence on its
courts." United States v. Postal, supra.

As a general principle of international law, individuals have no standing to challenge violations of

international treaties in the absence of a protest by the sovereign involved. United States v. Hensel, 699 F.2d
18, 30 (1st Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1317 (1983); Matta-Ballesteros v.
Henman, 896 F.2d at 263; United States v. Williams, 617 F.2d 1063, 1090 (5th Cir. 1980) (en banc) ("[R]ights
under international common law must belong to the sovereigns, not to individuals"); United States v.
Rosenthal, 793 F.2d at 1232 ("Under international law, it is the contracting foreign government that has the
right to complain about a violation."). The rationale behind this rule is that treaties are "designed to protect
the sovereign interests of nations, and it is up to the offended nations to determine whether a violation of
sovereign interests occurred and requires redress." United States v. Zabaneh, 837 F.2d 1249, 1261 (5th
Cir.1988). See also United States v. Cadena, 585 F.2d at 1261; United States v. Davis, 767 F.2d 1025, 1030 (2d
Cir.1985); United States v. Cordero, 668 F.2d 32, 37-38 (1st Cir.1981); United States v. Valot, 625 F.2d 308, 310
(9th Cir.1980); Lujan v. Gengler, 510 F.2d at 67 (under international law, "individual rights are only derivative
through the states") (quoting Restatement (Second) of the Foreign Relations Law of the United States, ง 115,
comment e (1965)). Consistent with that principle, a treaty will be construed as creating enforceable private
rights only if it expressly or impliedly provides a private right of action. Head Money Cases, 112 U.S. 580,
598-99, 5 S. Ct. 247, 253-54, 28 L. Ed. 798 (1884).

No such rights are created in the sections of the U.N. Charter, O.A.S. Charter, and Hague Convention cited
by Noriega. Rather, those provisions set forth broad general principles governing the conduct of nations
toward each other and do not by their terms speak to individual or private rights. See Frolova v. Union of
Soviet Socialist Republics, 761 F.2d at 374 (articles phrased in "broad generalities" constitute "declarations
of principles, not a code of legal rights"); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C.Cir. 1984)
(Bork, J., concurring) (Articles 1 and 2 of the United Nations Charter "contain general `purposes and
principles,' some of which state mere aspirations and none of which can be sensibly thought to have
been *1534 intended to be judicially enforceable at the behest of individuals."), cert. denied, 470 U.S. 1003,
105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985); Lujan v. Gengler, 510 F.2d at 66-67 (individual may not invoke Article
2(4) of the U.N. Charter or Article 20[17] of the O.A.S. Charter if the sovereign state involved does not
protest);[33]Handel v. Artukovic, 601 F. Supp. 1421, 1425 (C.D.Cal. 1985) (Hague Convention confers no
private right of action on individuals); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir.) (same), cert. denied, 429
U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1976); Tel-Oren v. Libyan Arab Republic, supra at 810 (same). Thus,
under the applicable international law, Noriega lacks standing to challenge violations of these treaties in the
absence of a protest by the Panamanian government that the invasion of Panama and subsequent arrest of
Noriega violated that country's territorial sovereignty.

It can perhaps be argued that reliance on the above body of law, under the unusual circumstances of this
case, is a form of legal bootstrapping. Noriega, it can be asserted, is the government of Panama or at least
its de facto head of state, and as such he is the appropriate person to protest alleged treaty violations; to
permit removal of him and his associates from power and reject his complaint because a new and friendly
government is installed, he can further urge, turns the doctrine of sovereign standing on its head. This
argument is not without force, yet there are more persuasive answers in response. First, as stated earlier,
the United States has consistently refused to recognize the Noriega regime as Panama's legitimate
government, a fact which considerably undermines Noriega's position. Second, Noriega nullified the results
of the Panamanian presidential election held shortly before the alleged treaty violations occurred. The
suggestion that his removal from power somehow robs the true government of the opportunity to object
under the applicable treaties is therefore weak indeed. Finally, there is no provision or suggestion in the
treaties cited which would permit the Court to ignore the absence of complaint or demand from the present
duly constituted government of Panama. The current government of the Republic of Panama led by
Guillermo Endara is therefore the appropriate entity to object to treaty violations. In light of Noriega's lack of
standing to object, this Court therefore does not reach the question of whether these treaties were violated
by the United States military action in Panama.

Article 3 of Geneva Convention I, which provides for the humane treatment of civilians and other non-
participants of war, applies to armed conflicts "not of an international character," i.e., internal or civil wars of
a purely domestic nature. 6 U.S.T. at 3116. See American Baptist Churches v. Meese, 712 F. Supp. 756, 769
(N.D.Cal.1989); L. Oppenheim, International Law, Vol. II at 370 (7th ed. 1952). Accordingly, Article 3 does not
apply to the United States' military invasion of Panama.

Finally, Defendant cites Article 6 of the Nuremberg Charter, which proscribes war crimes, crimes against
peace, and crimes against humanity. The Nuremberg Charter sets forth the procedures by which the
Nuremberg Tribunal, established by the Allied powers after the Second World War, conducted the trials and
punishment of major war criminals of the European Axis. *1535 The Government maintains that the
principles laid down at Nuremberg were developed solely for the prosecution of World War II war criminals,
and have no application to the conduct of U.S. military forces in Panama. The Court cannot agree. As Justice
Robert H. Jackson, the United States Chief of Counsel at Nuremberg, stated: "If certain acts in violation of
treaties are crimes, they are crimes whether the United States does them or whether Germany does them,
and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing
to have invoked against us."[34] Nonetheless, Defendant fails to establish how the Nuremberg Charter or its
possible violation, assuming any, has any application to the instant prosecution. As stated above, the Ker-
Frisbie doctrine makes clear that violations of treaties or customary international law alone do not deprive
the court of jurisdiction over the defendant in the absence of limiting language to that effect. See United
States v. Winter, 509 F.2d at 989. Defendant has not cited any language in the Nuremberg Charter, nor in any
of the above treaties, which limits the authority of the United States to arrest foreign nationals or to assume
jurisdiction over their crimes. The reason is apparent; the Nuremberg Charter, as is the case with the other
treaties, is addressed to the conduct of war and international aggression. It has no effect on the ability of
sovereign states to enforce their laws, and thus has no application to the prosecution of Defendant for
alleged narcotics violations. "The violation of international law, if any, may be redressed by other remedies,
and does not depend upon the granting of what amounts to an effective immunity from criminal prosecution
to safeguard individuals against police or armed forces misconduct." United States v. Cadena, 585 F.2d at
1261. The Court therefore refrains from reaching the merits of Defendant's claim under the Nuremberg
Charter.

C. Supervisory Authority

Having determined that Defendant Noriega fails to state a valid defense based on due process and
international law principles, this Court's inquiry is nonetheless unfinished, as Defendant Noriega
alternatively bases his motion on the inherent supervisory power of the Court. Noriega alleges that, by
asserting jurisdiction over him, this Court would thereby sanction and become party to the Government's
alleged misconduct in invading Panama and bringing Noriega to trial.

The supervisory power doctrine, while it may serve to vindicate a defendant's rights in an individual case, "is
designed and invoked primarily to preserve the integrity of the judicial system" and "to prevent the federal
courts from becoming accomplices" to government misconduct. United States v. Omni International
Corp., 634 F. Supp. 1414, 1438 (D.Md.1986) (quoting United States v. Payner, 447 U.S. at 744, 100 S. Ct. at
2451 (Marshall, J., dissenting)). Courts have consequently invoked the doctrine to suppress evidence and
dismiss indictments in the face of severe or pervasive prosecutorial abuse. See Omni International Corp.,
supra, and cases cited therein. Thus, supervisory authority is in essence a judicial vehicle to deter conduct
and correct injustices which are neither constitutional nor statutory violations, but which the court
nonetheless finds repugnant to fairness and justice and is loathe to tolerate. United States v. Leslie, 783 F.2d
541, 569 (5th Cir.1986) (Williams, Circuit Judge, dissenting) (citing United States v. Hasting, 461 U.S. 499,
505, 103 S. Ct. 1974, 1978, 76 L. Ed. 2d 96 (1983), and McNabb v. United States, 318 U.S. 332, 340, 63 S. Ct.
608, 613, 87 L. Ed. 819 (1943)), vacated, 479 U.S. 1074, 107 S. Ct. 1267, 94 L. Ed. 2d 128 (1987). As invocation
of supervisory power to dismiss an indictment is a harsh remedy, it is reserved only for flagrant or repeated
abuses which are outrageous or shock the conscience. Omni International Corp., supra; United States v.
Baskes, 433 *1536 F.Supp. 799, 806 (N.D.Ill.1977) (quoting Rochin v. California, 342 U.S. at 172, 72 S.Ct. at
209). It is certainly not to be applied as a remedy for mere technical illegalities or inadvertent violations, as
"[t]hese powers should not permit the criminal to go free because the constable blundered." Baskes,
supra (citing People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (1926)). Thus, a higher threshold of government
misconduct is imposed for invocation of the supervisory power than that required to state a constitutional or
statutory violation. Noriega argues that his arrest and presence before the Court was secured as a result of
deliberate and indiscriminate atrocities committed by the United States in the course of its invasion of
Panama, and that such conduct "shocking to the conscience" calls for an exercise of the Court's inherent
supervisory authority resulting in dismissal of the indictment.

In response, the Government argues that, even pursuant to the Court's inherent supervisory authority,
Noriega may not seek dismissal of the indictment based on alleged violations of the rights of third parties โ€"
in this case, the rights of individual Panamanians or of the Panamanian state. The Government's position
thus seems to be that a defendant's own constitutional or statutory rights must be violated in order to trigger
the exercise of a court's supervisory power. This stance blurs the critical distinction between the use of
supervisory authority on the one hand and the courts' rulings based on violations of constitutional and
statutory law on the other. Since, as stated earlier, use of supervisory authority presents an independent
body of law and does not depend on the existence of a constitutional or statutory violation, the fact that a
defendant's own such rights have not been violated is not decisive. (See United States v. Leslie, 783 F.2d at
569-71, for extensive discussion of the relation of the supervisory powers doctrine to constitutional and
statutory law). A contrary result would indeed render the doctrine meaningless, since dismissal of an
indictment or other remedy would thus flow from the required constitutional or statutory violation and
invocation of the supervisory authority would therefore be unnecessary. Contrary to the suggestion implicit
in the Government's position, "supervisory powers cases ... are not constitutional cases in disguise." United
States v. Payner, 447 U.S. at 749, 100 S. Ct. at 2453 (Marshall, J., dissenting).

The majority ruling in Payner, supra, cited by the Government, is distinguishable on its facts and thus does
not constrict this Court's exercise of its supervisory authority in the instant case. In Payner, the Supreme
Court held that the supervisory power doctrine could not be used to suppress evidence obtained in violation
of a third party's Fourth Amendment rights. Because evidence is excluded under the Fourth Amendment
only where an unlawful search or seizure violates the defendant's own constitutional rights, the Court
refused to allow a different result under the supervisory power doctrine as that approach would circumvent
"the careful balance of interests embodied in the Fourth Amendment decisions of this Court." 447 U.S. at
733, 100 S. Ct. at 2445. The Court's concern was simply to prevent supervisory powers from being used as
an `end run' around settled Fourth Amendment law, but its decision explicitly did not "limit the traditional
scope of the supervisory power in any way; nor ... render that power `superfluous.'" 447 U.S. at 735, n. 8, 100
S. Ct. at 2446, n. 8. Since the illegal search at issue in Payner did not rise to the level of pervasive or
shocking misconduct imposed under the doctrine of supervisory authority, the Court's narrow holding can
hardly be construed to render that doctrine meaningless and the judicial system helpless in the face of
inhumane conduct shocking to the conscience merely because technical standing requirements are not met.
If, for example, we were confronted with a pure law enforcement effort in which government agents
deliberately killed and tortured individuals for the sole purpose of discovering a fugitive's whereabouts in
order to secure his arrest, the Court would face a situation which properly calls for invocation of its
supervisory powers.[35] It would also call to mind Justice Brandeis' eloquent dissent in Olmstead v.
United *1537 States, 277 U.S. 438, 485, 48 S. Ct. 564, 575, 72 L. Ed. 944 (1928):

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of
conduct that are commands to the citizen. In a government of laws, existence of the government will be
imperilled if its fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher.
For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government
becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the criminal law the end justifies the means โ€" to
declare that the government may commit crimes in order to secure the conviction of a private criminal โ€"
would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

This Court may someday have occasion to apply Justice Brandeis' wise words, but this is not that day, for
we are confronted not with the above hypothetical but rather a military war in which innocent lives were
unfortunately lost in the pursuit of foreign policy objectives. Although the motives behind the military action
are open to speculation, the stated goals of the invasion were to protect American lives, support democracy,
preserve the Panama Canal Treaties, and bring Noriega to the United States to stand trial for narcotics
offenses.[36] Because the President ordered Noriega arrested "in the course of carrying out the military
operations in Panama,"[37] the capture of Noriega was incident to the broader conduct of foreign policy.
While the Government's asserted rationales for the invasion are not beyond challenge and need not be
blindly accepted by this Court, counsel for Noriega have offered no evidence to the contrary and the
evidence they have offered in fact bolsters the conclusion that the invasion was primarily an exercise in
foreign policy. A report by the "Independent Commission of Inquiry on the U.S. Invasion of Panama," which
is attached as an exhibit to Defendant's brief, alleges that the invasion was carried out primarily to promote
U.S. economic interests in Panama and to "maintain the Southern Command's use of Panama as a forward
base of military operation throughout the region."[38] Indeed, the Commission specifically rejected the arrest
of Noriega on drug trafficking charges as a reason for the invasion, stating, "[t]he U.S. attempted to justify its
brutal invasion by charging Gen. Noriega with drug laundering operations. The Commission outrightly
rejects that as a legitimate justification or the reason for the invasion."[39] The Court cites the Commission's
findings not as affirmative proof of the invasion's objectives โ€" the report was not received into evidence โ€"
but simply to underscore the fact that no evidence has been presented which suggests that military troops
were sent into Panama for the singular or even primary purpose of enforcing U.S. narcotics laws by bringing
a suspected drug dealer to trial. The additional fact of Noriega's declaration of war against the United States
shortly before the invasion only further undermines that premise.[40]

*1538 That foreign policy objectives rather than just law enforcement goals are implicated radically changes
the Court's consideration of the government conduct complained of and, consequently, its willingness to
exercise supervisory power. For the question then posed is whether a court may, under the guise of its
supervisory authority, condemn armed conflict as "shocking to the conscience." Any such declaration not
only runs squarely into the political question doctrine, which precludes courts from resolving issues more
properly committed to the political branches, but would indeed constitute unprecedented judicial
interference in the conduct of foreign policy.

Although the judiciary clause of the Constitution does not limit the ability of federal courts to adjudicate
issues merely because they present political questions, judges have nevertheless defined a category of
executive and legislative branch actions as beyond the scope of judicial inquiry ever since the Supreme
Court first claimed the power of judicial review in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66, 2 L. Ed.
60 (1803). The nonjusticiability of political questions is therefore not so much a product of constitutional
doctrine but primarily a recognition of the separation of powers and the system of checks and balances
provided for in the Constitution. Baker v. Carr, 369 U.S. 186, 210, 82 S. Ct. 691, 706, 7 L. Ed. 2d 663 (1962).

While the exact contours of the political question doctrine are ambiguous and remain a source of some
confusion,[41] the Court is guided by Justice Brennan's oftquoted formulation of the doctrine in the seminal
case of Baker v. Carr, supra:

Prominent on the surface of any case held to involve a political question is found [1] a textually
demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of
judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding it
without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a
court's taking independent resolution without expressing lack of respect due coordinate branches of
government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or
the potentiality of embarrassment from multifarious pronouncements by various departments on one
question.

Id. at 217, 82 S. Ct. at 710. Under the first prong of the Baker formulation โ€" the textual commitment of the
issue to a political branch โ€" broad challenges to an Executive's conduct of foreign policy are nonjusticiable
since the formulation and execution of foreign policy are constitutionally committed to the executive and
legislative branches.[42] In Johnson v. Eisentrager, for example, the Supreme Court refused to adjudicate a
challenge to United States military activities in China, stating: "[I]t is not the function of the judiciary to
entertain private litigation ... which challenges the legality, wisdom, or propriety of the Commander-in-Chief
in sending our armed forces abroad or in any particular region." 339 U.S. 763, 789, 70 S. Ct. 936, 94 L. Ed.
1255 (1950). This is not to say that every case or controversy *1539 which touches upon foreign relations is
immune from judicial scrutiny. Courts retain the power to determine whether a particular congressional or
executive act comes within the bounds of a constitutional grant of authority. In the context of a war or
military hostilities such as that present here, for example, the question of possible executive usurpation of
Congress's exclusive authority to declare war is clearly a matter for judicial review. See Atlee v. Laird, 347 F.
Supp. 689, 702 (E.D.Pa.1972), aff'd, 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973); Crockett v.
Reagan, 558 F. Supp. at 898. The distinction is therefore between justiciable questions of constitutional
authority and nonjusticiable broad challenges to the conduct of foreign policy, the resolution of which
threatens to entangle the court in the management of foreign affairs.

Noriega does not, and legally cannot, allege that President Bush exceeded his powers as Commander-in-
Chief in ordering the invasion of Panama. Rather, he asks this Court to find that the deaths of innocent
civilians and destruction of private property is "shocking to the conscience and in violation of the laws and
norms of humanity." At bottom, then, Noriega's complaint is a challenge to the very morality of war itself.
This is a political question in its most paradigmatic and pristine form. It raises the specter of judicial
management and control of foreign policy and challenges in a most sweeping fashion the wisdom, propriety,
and morality of sending armed forces into combat โ€" a decision which is constitutionally committed to the
executive and legislative branches and hence beyond judicial review. Questions such as under what
circumstances armed conflict is immoral, or whether it is always so, are not ones for the courts, but must be
resolved by the political branches entrusted by the Constitution with the awesome responsibility of
committing this country to battle.[43] In this case, the decision to send troops into Panama was made by the
President in his capacity as Commander-in-Chief, and he is on this matter "accountable only to his country
in his political character, and his own conscience." Marbury v. Madison, 5 U.S. (1 Cranch) at 165. The Court
has no authority to pass moral judgement upon that decision under the cloak of its supervisory authority.

Defense counsel condemn the military action and the "atrocities" which followed and, having established
this argumentative premise, then suggest that such conduct should not be sanctioned by the Court nor
should the fruits, i.e., the arrests, of such conduct be permitted. It is further urged that to permit this case to
proceed is to give judicial approval to the military action defense counsel condemn. As indicated above, this
reasoning fails to recognize the constitutional separation of powers and functions. Any suggestion that
rejection of Defendant's position is somehow an approval of governmental conduct described as egregious
is misplaced. There are other forums in which complaints about our Government's political activities can be
made. To the extent legally permissible by the attendant facts, this Court proposes to try the case within the
issues framed by the indictment and the defenses which will be presented by Defendants.

The complexity of the question Noriega poses is further compounded by the lack of judicially discoverable
and manageable standards. In Da Costa v. Laird, 471 F.2d 1146 (2d Cir.1973), an inductee in the United States
Army alleged that President Nixon's orders to bomb targets and mine harbors in North Vietnam constituted
an illegal escalation of the war in the absence of congressional authorization. The Second Circuit held that
the suit presented a nonjusticiable political question under the second Baker prong since the court was
incapable of assessing whether the action would escalate the war or hasten its conclusion. Similarly, the
court in Crockett v. *1540 Reagan declined to determine whether U.S. military aid and advisors had been
introduced into "imminent hostilities" in El Salvador, thereby implicating the War Powers Resolution and the
war powers clause of the Constitution. The court held that it lacked the resources and expertise to resolve
disputed questions of fact concerning the military situation in El Salvador and the exact nature of U.S.
participation in the conflict. 558 F. Supp. at 898. More recently, the District Court for the Southern District of
New York found the lack of judicially discoverable standards sufficient grounds for dismissing as a political
question a challenge to the deployment of cruise missiles. Asserting tortious injury and constitutional
violations, the plaintiffs contended that the deployment of cruise missiles in Great Britain would create a
substantial risk of nuclear war initiated by either the United States or the Soviet Union. By contrast, the
government argued that the deployment of the missiles would enhance peace by deterring the Soviet Union
from initiating war and by serving as an impetus for arms control negotiation. Faced with this factual
dispute, the court declined to reach the merits of the case since the question of whether missile deployment
promotes or undermines world peace was simply beyond the court's competence and expertise. Greenham
Women Against Cruise Missiles v. Reagan, 591 F. Supp. at 1338. See also Holtzman v. Schlesinger, 484 F.2d
at 1310 (question of whether bombing of Cambodia represented a `basic change in the situation' which
would nullify prior congressional authorization involved "military and diplomatic expertise not vested in the
judiciary" and was therefore political).

If the courts are incapable of determining whether bombing constitutes an escalation of war or what the
effect of missile deployment is on world peace, it would likewise seem beyond our province to determine
whether or under what circumstances war is immoral. What would be the criteria for determining when
armed conflict is `shocking to the conscience'? Defendant's counsel makes much of the numbers of
innocent civilians killed and the extent of property damage, but the Court fails to see what that argument
proves; the death of but one woman or man is one too many. Having said that, the Court is here reminded of
then Circuit Judge Warren E. Burger's opinion in another case implicating foreign policy concerns:

That appellants now resort to the courts on a vague and disoriented theory that judicial power can supply a
quick and persuasive remedy for one of mankind's great problems is no reason why we as judges should
regard ourselves as Guardian Elders ordained to review the political judgements of elected representatives
of the people. In framing policies relating to the great issues of national defense and security, the people are
and must be, in a sense, at the mercy of their elected representatives. But the basic and important corollary
is that the people may remove their elected representatives as they cannot dismiss United States judges.
This elementary fact about the nature of our system, which seems to have escaped notice occasionally,
must make manifest to judges that we are neither gods nor godlike, but judicial officers with narrow and
limited authority. Our entire System of Government would suffer incalculable mischief should judges attempt
to interpose the judicial will above that of the Congress and President, even were we so bold as to assume
that we can make a better decision on such issues.

Pauling v. McNamara, 331 F.2d 796, 799 (D.C.Cir.1963), cert. denied, 377 U.S. 933, 84 S. Ct. 1336, 12 L. Ed. 2d
297 (1964).

Finally, it is worth noting that even if we assume the Court has any authority to declare the invasion of
Panama shocking to the conscience, its use of supervisory powers in this context would have no application
to the instant prosecution for the reasons stated. Since the Court would in effect be condemning a military
invasion rather than a law enforcement effort, any `remedy' would necessarily be directed at the
consequences and effects of armed conflict rather than at the prosecution of Defendant Noriega for alleged
narcotics violations. The Defendant's assumption that judicial condemnation of the invasion
must *1541 result in dismissal of drug charges pending against him is therefore misplaced.

In view of the above findings and observations, it is the Order of this Court that the several motions
presented by Defendants relating to this Court's jurisdiction as well as that suggesting dismissal under
supervisory authority be and each is DENIED.

DONE AND ORDERED.

NOTES

[1] United States v. Noriega, 683 F. Supp. 1373 (S.D.Fla.1988).

[2] Defendant Del Cid's motion to dismiss based on alleged violations of the Posse Comitatus Act, the
Mansfield Amendment, and the Fifth Amendment due process clause was subsequently withdrawn and is
therefore not before the Court. Defendant Del Cid's Notice of Withdrawal of Motion to Dismiss for Lack of
Properly Effectuated Jurisdiction (March 23, 1990).

[3] Defendant Noriega's Motion to Dismiss Indictment, p. 9 (Sept. 15, 1988).

[4] No jurisdictional obstacle would be present were the defendant a United States citizen, since a country
may regulate the acts of its citizens wherever they occur. United States v. Columba-Colella, 604 F.2d 356, 358
(5th Cir.1979); Blackmer v. United States, 284 U.S. 421, 436-37, 52 S. Ct. 252, 254, 76 L. Ed. 375 (1932); United
States v. King, 552 F.2d 833, 851 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S. Ct. 1646, 52 L. Ed. 2d 357
(1977); United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.), cert. denied, 392 U.S. 936, 88 S. Ct. 2306, 20 L. Ed.
2d 1395 (1968); Rocha v. United States, 288 F.2d 545, 548 (9th Cir.), cert. denied, 366 U.S. 948, 81 S. Ct. 1902,
6 L. Ed. 2d 1241 (1961); Restatement (Second) of the Foreign Relations Law of the United States, ง 30(1).

[5] Defendant's citation to United States v. Bank of Nova Scotia for the proposition that extraterritorial
jurisdiction must be exercised delicately does not balance in his favor. In that case, which involved a grand
jury subpoena served upon a Canadian-chartered bank located in the Bahamas, the Eleventh Circuit
acknowledged that enforcing the subpoena might provoke international friction but nonetheless held that it
"simply cannot acquiesce in the proposition that United States criminal investigations must be thwarted
whenever there is a conflict with the interest of other states." 691 F.2d 1384, 1391 (11th Cir.1982) (quoting In
re Grand Jury Proceedings (Field), 532 F.2d 404, 410 (5th Cir.), cert. denied, 429 U.S. 940, 97 S. Ct. 354, 50 L.
Ed. 2d 309 (1976)), cert. denied, 462 U.S. 1119, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983)). Bank of Nova
Scotia is therefore in accord with the cases cited above.

Similarly unpersuasive is Defendant's reference to a legal treatise arguing that the effects doctrine should
not be applied to extraterritorial conduct resulting in "more or less remote
repercussions." See Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws, 33
Brit.Y.B.C.L. 146, 159 (1957). Since Noriega is alleged to have conspired to import narcotics into the United
States, the delivery of over 2,000 pounds of cocaine into Miami โ€" far from being a `remote repercussion' of
the conspiracy โ€" is in fact a direct and intended result of his alleged activities in Panama.

[6] In Republic of Philippines v. Marcos (Marcos II), the Philippine government brought a RICO action against
deposed president Ferdinand Marcos and his wife Imelda for allegedly converting funds belonging to the
Philippine people for their own personal use. The indictment charged that some of the funds were invested
in properties in the United States and that other monies and valuables were transported to Hawaii upon the
Marcos' arrival there. On the question of RICO's applicability, the court in dicta suggested that the Marcos'
alleged conduct in the Philippines could not be reached but did not ultimately decide the issue since it
upheld jurisdiction based upon the Marcos' alleged transportation of stolen property into the United States.
The holding in that case thus provides little, if any, guidance on the issue. 818 F.2d 1473, 1478-79 (9th
Cir.1987), op. withdrawn, reh. gr., rev'd on other grounds on reh. en banc, Republic of Philippines v.
Marcos (Marcos III), 862 F.2d 1355 (9th Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 1933, 104 L. Ed. 2d 404
(1989).

[7] Much has been written and said about RICO's extensive reach in a manner perhaps unforseen at the time
of its enactment. Recently, for example, RICO actions have been brought against anti-abortion protestors
seeking to block access to abortion and family planning clinics. See, e.g., West Hartford v. Operation
Rescue, 726 F. Supp. 371 (D.Conn.1989); Feminist Women's Health Center v. Roberts, 1988 WL 156656, 1988
U.S. Dist. LEXIS 16325 (W.D.Wash.1988); see generally, Melley, Stretching of civil RICO: Prolife
demonstrators are racketeers, 56 UMKC L.Rev. 287 (1988). But "the fact that RICO has been applied in
situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates
breadth." Haroco Inc. v. American National Bank & Trust Co., 747 F.2d 384, 398 (7th Cir.1984), aff'd, 473 U.S.
606, 105 S. Ct. 3291, 87 L. Ed. 2d 437 (1985).

[8] Pub.L. No. 91-452, ง 904(a), 84 Stat. 947.

[9] 18 U.S.C. ง 1952 provides in pertinent part:

(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce,
including the mail, with intent to โ€"

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment,
or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3),
shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

(b) As used in this section "unlawful activity" means (1) any business enterprise involving gambling, liquor
on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section
102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in
which they are committed or of the United States (2) extortion, bribery, or arson in violation of the laws of the
State in which committed or of the United States, or (3) any act which is indictable under subchapter II of
chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title.

[10] The Court is, of course, mindful that the Supreme Court has cautioned that Congress did not intend "a
broadranging interpretation of ง 1952." Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 1059, 28 L.
Ed. 2d 493 (1971). That admonition has, however, been issued where the defendants themselves did not
directly cause or engage in interstate activity, and where the interstate component was marginal at
best. See United States v. Kahn, 472 F.2d 272, 285 (2d Cir.), cert. denied, 411 U.S. 982, 93 S. Ct. 2270, 36 L.
Ed. 2d 958 (1973). The Court was thus wary that the Travel Act not be used to target primarily local activity
and thereby upset the federal-state balance โ€" a concern not present in the instant case.

[11] Given this rationale, there is ample doubt whether head of state immunity extends to private or criminal
acts in violation of U.S. law. See In re Doe, 860 F.2d at 45; In re Grand Jury Proceedings, Doe # 700, 817 F.2d
at 1111; Republic of Philippines v. Marcos (Marcos I), 806 F.2d 344, 360 (2d Cir.1986). Criminal activities such
as the narcotics trafficking with which Defendant is charged can hardly be considered official acts or
governmental duties which promote a sovereign state's interests, especially where, as here, the activity was
allegedly undertaken for the sole personal benefit of the foreign leader. In light of the Court's disposition on
other grounds, however, it reserves discussion of this issue for Defendant's act of state defense, infra.

[12] The Panamanian Defense Forces are a creation of Noriega's under which he combined the National
Guard, other Panamanian military and police forces, and some bureaucratic departments.

[13] The provision of customary international law cited by Defendant as an acceptable definition of a head of
state would not include Noriega. 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) defines
"internationally protected person" as "(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 has not shown that he was either the ceremonial or
official head of government, and he does not otherwise fulfill the definition.

[14] This principle undermines Defendant's reliance on the government's position in Republic of Philippines
by Central Bank of Philippines v. Marcos, 665 F. Supp. 793 (N.D.Cal.1987). There, the government moved to
quash a deposition subpoena served on the Philippine Solicitor General by unsuccessfully arguing that the
Solicitor General qualified for head of state immunity. Noriega maintains that his status as de
jure Commander in Chief of the Panamanian Defense Forces and de facto head of the Panamanian
government is at least as high as a solicitor general and therefore qualifies him for head of state immunity.
Since, as explained above, head of state immunity is a privilege bestowed within the Executive's discretion,
the government is not bound to a position it has taken on another foreign official in an entirely different
context.

[15] Pub.L. No. 95-393, 92 Stat. 808 (1978), codified at 22 U.S.C. งง 254a-e.
[16] T.I.A.S. No. 7502, 23 U.S.T. 3227, April 18, 1961.

[17] Affidavit of Richard Gookin, Assistant Chief of Protocol, United States Department of State, attached as
Exhibit "D" to Government's Motion In Opposition to Defendant Noriega's Motion to Dismiss the
Indictment (October 20, 1988).

[18] United States Department of State memorandum, attached as Exhibit "C" to Government's Motion in
Opposition to Defendant Noriega's Motion to Dismiss the Indictment (Oct. 20, 1988).

[19] Defendant Noriega's Motion to Dismiss the Indictment, p. 45 (Sept. 15, 1988).

[20] United States Department of State memorandum, attached as Exhibit "E" to Government's Motion in
Opposition to Defendant Noriega's Motion to Dismiss the Indictment (Oct. 20, 1988).

[21] There are in fact four Geneva Conventions of 1949: (1) the Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armies in the Field; (2) the Geneva Convention for the
Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea; (3) the
Geneva Convention Relative to the Treatment of Prisoners of War; and (4) the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War.

[22] The Third 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, Article
4, Section A(1), (2).

[23] See United States v. Mariea, 795 F.2d 1094 (1st Cir.1986); United States v. Walker, 552 F.2d 566, 567 (4th
Cir.), cert. denied, 434 U.S. 848, 98 S. Ct. 157, 54 L. Ed. 2d 116 (1977).

[24] Defendant Del Cid was arrested on December 26, 1989. Defendant Noriega was arrested shortly
thereafter, on January 3, 1990.

[25] See International Committee of the Red Cross, Commentary to the Third Geneva Convention Relative to
the Treatment of Prisoners of War, J. Pictet (Ed.1960) on Articles 83 and 87.

[26] Cf. United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 1419, 16 L. Ed. 2d 510 (1966) ("Our numerous
precedents ordering the exclusion of illegally obtained evidence assumed implicitly that the remedy does
not extend to barring the prosecution altogether. So drastic a step might marginally advance some of the
ends served by the exclusionary rules, but it would also increase to an intolerable degree interference with
the public interest in having the guilty brought to book."); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854,
865, 43 L. Ed. 2d 54 (1975) ("Nor do we retreat from the established rule that illegal arrest or detention does
not void a subsequent conviction.").

[27] On the present record, the only incident which comes close to any kind of personal mistreatment is the
above-mentioned event in which American troops blasted the Papal Nunciature in Panama City with loud
rock-and-roll music in an apparent effort to drive Noriega out. While there are those who might consider
continued exposure to such music an Eighth Amendment violation, it is the opinion of the Court that such
action does not rise to the level of egregious misconduct sufficient to constitute a due process violation.
[28] The Court assumes without deciding that, consistent with Toscanino, the Fifth Amendment's guarantee
of due process extends to aliens abroad. In United States v. Verdugo-Urquidez, ___ U.S. ___, 110 S. Ct. 1056,
108 L. Ed. 2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to searches and
seizures abroad if the target of the search and seizure is an alien with "no voluntary attachment to this
country." ___ U.S. at ___, 110 S. Ct. at 1064. Although the Court indicated that aliens outside the territorial
bounds of the United States do not enjoy due process protection, Id. at ___, 110 S. Ct. at 1062
(citing Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (1950)), the question of the Fifth
Amendment's extraterritorial application was not at issue in that case. Id. ___ U.S. at ___, 110 S. Ct. at 1060.

[29] Article 2(4) of the United Nations Charter provides, in relevant part, that "All Members shall refrain in
their international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." 59
Stat. 1031, 1037, T.S. 993.

[30] Article 20[17] of the O.A.S. Charter provides that "[t]he territory of a State is inviolable; it may not be the
object, even temporarily, of military occupation or of other measures of force taken by another State, directly
or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by
force or by other means of coercion shall be recognized." 2 U.S.T. 2394, 2420.

[31] Article 23(b) states that "it is especially forbidden ... [t]o kill or wound treacherously individuals
belonging to the hostile nation or army;" Article 25 provides that "[t]he attack or bombardment, by whatever
means, of towns, villages, dwellings, or buildings which are undefended is prohibited." 36 Stat. 2277, 2301-
02 (1907).

[32] Noriega also asserts that the United States military action in Panama violated the Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), U.N.Doc. a/32/144 Annex I (1977). The United States Congress, however, has expressly
declined to ratify that Protocol on the grounds that it is "fundamentally unfair and irreconcilably flawed" and
"would undermine humanitarian law and endanger civilians in war." S. Treaty Doc. 2, 100th Cong., 1st Sess.
iii-iv (1987).

[33] The conclusion that Article 2(4) of the U.N. Charter is not self-executing is supported by the decisions of
other courts reaching the same conclusion with respect to various other provisions of the U.N. Charter. See,
e.g., Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937-38 (D.C.Cir.1988) (Article 94
of U.N. not self-executing); Frolova v. Union of Soviet Socialist Republics, 761 F.2d at 374-75 (Articles 55 and
56 of U.N. Charter not self-executing); Camacho v. Rogers, 199 F. Supp. 155, 158 (S.D.N. Y.1961) (Article 55 of
U.N. Charter not self-executing). See also Spiess v. C. Itoh & Co. (America) Inc., 643 F.2d 353, 363 (5th
Cir.1981) ("[T]he Charter of the United Nations, although adopted by the United States, is not a self-executing
international obligation"); People of Saipan v. United States Dept. of Interior, 502 F.2d 90, 100 (9th Cir.1974)
(Trask, J., concurring) ("[T]he Charter of the United Nations is not self-executing and does not in and of itself
create rights which are justiciable between individual litigants"), cert. denied, 420 U.S. 1003, 95 S. Ct. 1445,
43 L. Ed. 2d 761 (1975); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C.1958) (provisions of U.N. Charter not
self-executing), aff'd, 278 F.2d 252 (D.C.Cir.), cert. denied, 364 U.S. 835, 81 S. Ct. 61, 5 L. Ed. 2d 60 (1960).

[34] International Conference on Military Trials, London, 1945, Dept. of State Pub. No. 3080 (1949), p. 330.

[35] See, e.g., United States v. Archer, 486 F.2d 670, 676-77 (2d Cir.1973).

[36] Government's Memorandum of Law in Response to Defendant Del Cid's Motion to Dismiss Indictment
and Defendant Noriega's Challenge to the Court Jurisdiction, pp. 2-3 (Feb. 2, 1990).
[37] Memorandum for the Secretary of Defense from the President of the United States (Dec. 20, 1989) cited
in Government Memorandum in Response to Motion to Dismiss Indictment, Feb. 2, 1990, p. 3.

[38] Defendant Noriega's Motion to Dismiss Indictment, Exhibit "A", p. 1 (March 22, 1990).

[39] Id., p. 9.

[40] The Court therefore does not face the task of resolving the exact motives behind the invasion, a
question which may well be beyond its expertise and resources. See, e.g., Crockett v. Reagan, 558 F. Supp.
893, 898 (D.D.C.1982) (court lacked resources and expertise to resolve disputed questions of fact concerning
presence of imminent hostilities in El Salvador, which existence would implicate War Powers
Resolution), aff'd, 720 F.2d 1355 (D.C.Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839
(1984); Lowry v. Reagan, 676 F. Supp. 333, 340 n. 53 (D.D.C.1987) (court unable to determine whether hostile
situation existed in Persian Gulf); Holtzman v. Schlesinger, 484 F.2d 1307, 1310 (2d Cir.1973) (court lacked
expertise to determine whether or not President's bombing of Cambodia constituted a `tactical decision'
within his discretion), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974). See discussion infra.

[41] See Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979); see also Henkin, Is There a
"Political Question Doctrine?", 85 Yale L.J. 597, 622-23 (1976).

[42] The provisions of the Constitution relating to President's powers in diplomatic and military affairs
provide that "[t]he President shall be Commander in Chief of the Army and Navy" (article II, sec. 2, cl. 1); that
the President "shall have the power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur" (article II, sec. 2, cl. 2); that the President "shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls" (article II, sec. 2, cl. 2); "shall receive Ambassadors and other public Ministers"
(article II, sec. 3); and "shall take Care that the Laws be faithfully executed" (article II, sec. 3).

The provisions of the Constitution relating to the war powers of Congress provide that Congress has the
power "[t]o declare War;" (article I, sec. 8, cl. 11); and to make laws "necessary and proper for carrying into
Execution" its enumerated powers (article I, sec. 8, cl. 18).

[43] Cf. Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332, 1338 (S.D.N.Y. 1984):
"Questions like how to ensure peace, how to promote prosperity, what is a fair utilization and distribution of
economic resources are examples of questions that must be decided by the fair, sound, seasoned and
mature judgement of men and women responsive to the common good. The power to make these
determinations is therefore appropriately allocated to the political branches." Aff'd, 755 F.2d 34 (2d Cir.1985).

G.

Manila Hotel vs NLRC

G.R. No. 120077

October 13, 2000

THE MANILA HOTEL CORP. AND MANILA HOTEL INTL. LTD.

petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, ARBITER CEFERINA J. DIOSANA AND MARCELO G. SANTOS

respondents.

 Background: Marcelo Santos, overseas contract worker in Oman. Manila Hotel Corporation (MHC)- is an
“incorporator” of MHICL, owning 50% of its capital stock. Manila Hotel International Company, Limited (MHIC)
trained the personnel and staff of the Palace Hotel at Beijing, China.
 Santos was hired by Palace Hotel in a 2-year contract, through recommendation of his friend Buenio, thus he
resigned in his current job in Oman.
 He started to work at the Palace Hotel.
 Subsequently, Santos signed an amended “employment agreement” with the Palace Hotel.
 Shmidt represented the Palace Hotel.
 The VP of MHICL Miguel D. Cergueda also signed the employment agreement under the word “noted”.
 Later, Santos was in the Philippines on vacation leave.
 Days later when he returned to China and reassumed his post Mr. Shmidt’s Executive Secretary suggested in
a handwritten note that Santos be given one (1) month notice of his release from employment.
 Palace Hotel informed Santos by letter signed by Mr. Shmidt that his employment at Palace Hotel would be
terminated due to business reverses brought about by the political upheaval in China.
 Palace Hotel paid all benefits due him, including his plane fare back to the Philippines.
 Santos wrote Mr. Shmidt, demanding full compensation pursuant to the employment agreement.
 Shmidt declined.
 Santos filed a complaint for illegal dismissal with the Arbitration Branch, National Capital Region, National
Labor Relations Commission (NLRC).
 The complaint named MHC, MHICL, the Palace Hotel and Mr. Shmidt as respondents.
 Petitioners appealed to the NLRC, arguing that the POEA, not the NLRC had jurisdiction over the case.
 Santos argued that the case was not cognizable by the POEA as he was not an “overseas contract worker.”
 On December 15, 1994, the NLRC ruled in favor of Santos.

REPORT THIS AD

W/N NLRC has the jurisdiction over the case of Santos.

Ruling: NO.

Rule of forum non conveniens, a Philippine court or agency may assume jurisdiction over the case if:

1. (1) Philippine court is one to which the parties may conveniently resort to;
2. (2) Philippine court is in a position to make an intelligent decision as to the law and the facts; and
3. (3) Philippine court has or is likely to have power to enforce its decisions

The conditions are unavailing in the case at bar.

Not Convenient.
  given that all the incidents of the case occurred outside the Philippines.
 Also, defendants, the Palace Hotel and MHICL are not nationals of the Philippines.
 Main witnesses, Mr. Shmidt and Mr. Henk are non-residents of the Philippines.

No power to determine applicable law.

 Employment contract was perfected in foreign soil.

 Application of the principle of lex loci contractus (the law of the place where the contract was made)

No power to determine the facts.

 All acts complained of took place in Beijing, People’s Republic of China.

 NLRC was not in position to determine whether the Tiannamen Square incident truly adversely affected
operations of the Palace Hotel to justify respondent Santos’ retrenchment.

Principle of effectiveness, no power to execute decision.

 Even assuming that a proper decision could be reached by the NLRC, such would not have any binding effect
against the employer, the Palace Hotel.
 Jurisdiction over person of Palace Hotel was not acquired.
 If Santos were an “overseas contract worker”, a Philippine forum in POEA would protect him. He is not an
“overseas contract worker”.

MHC Not Liable

 MHC is an incorporator of MHICL and owns fif ty percent (50%) of its capital stock.
 However, this is not enough to pierce the veil of corporate fiction between MHICL and MHC.

Manila Hotel Corporation vs National Labor Relations Commission

In May 1988, Marcelo Santos was an overseas worker in Oman. In June 1988, he was recruited by Palace Hotel in
Beijing, China. Due to higher pay and benefits, Santos agreed to the hotel’s job offer and so he started working there
in November 1988. The employment contract between him and Palace Hotel was however without the intervention of
the Philippine Overseas Employment Administration (POEA). In August 1989, Palace Hotel notified Santos that he will
be laid off due to business reverses. In September 1989, he was officially terminated.

In February 1990, Santos filed a complaint for illegal dismissal against Manila Hotel Corporation (MHC) and Manila
Hotel International, Ltd. (MHIL). The Palace Hotel was impleaded but no summons were served upon it. MHC is a
government owned and controlled corporation. It owns 50% of MHIL, a foreign corporation (Hong Kong). MHIL
manages the affair of the Palace Hotel. The labor arbiter who handled the case ruled in favor of Santos. The National
Labor Relations Commission (NLRC) affirmed the labor arbiter.

ISSUE: Whether or not the NLRC has jurisdiction over the case.
 HELD: No. The NLRC is a very inconvenient forum for the following reasons:

1. The only link that the Philippines has in this case is the fact that Santos is a Filipino;

2. However, the Palace Hotel and MHIL are foreign corporations – MHC cannot be held liable because it merely owns
50% of MHIL, it has no direct business in the affairs of the Palace Hotel. The veil of corporate fiction can’t be pierced
because it was not shown that MHC is directly managing the affairs of MHIL. Hence, they are separate entities.

3. Santos’ contract with the Palace Hotel was not entered into in the Philippines;

4. Santos’ contract was entered into without the intervention of the POEA (had POEA intervened, NLRC still does not
have jurisdiction because it will be the POEA which will hear the case);

5. MHIL and the Palace Hotel are not doing business in the Philippines; their agents/officers are not residents of the
Philippines;

Due to the foregoing, the NLRC cannot possibly determine all the relevant facts pertaining to the case. It is not
competent to determine the facts because the acts complained of happened outside our jurisdiction. It cannot determine
which law is applicable. And in case a judgment is rendered, it cannot be enforced against the Palace Hotel (in the first
place, it was not served any summons).

The Supreme Court emphasized that under the rule of forum non conveniens, a Philippine court or agency may assume
jurisdiction over the case if it chooses to do so provided:

(1) that the Philippine court is one to which the parties may conveniently resort to;

(2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and

(3) that the Philippine court has or is likely to have power to enforce its decision.

None of the above conditions are apparent in the case at bar.