What the Noriega case can tell us about Maduro’s upcoming legal battle

(CNN) — Over three decades ago, the US government executed the shocking arrest of the leader of a foreign country: Panama’s Manuel Noriega. The dictator’s case may prove to be a guide for the prosecutors, defense attorneys and judges now involved in the case against Venezuela’s Nicolás Maduro.

Like Maduro, Noriega was accused of participating in a large-scale operation to smuggle drugs into the United States. And Noriega was also captured in a military operation in his home country.

Noriega’s attorneys quickly launched an aggressive defense of the military leader, accusing President George H.W. Bush’s Justice Department of violating both international law and due process protections by invading Panama and arresting him abroad.

They also claimed that Noriega had immunity as a foreign head of state.

Maduro, who prosecutors say ran “state sponsored gangs” and facilitated drug trafficking in the Venezuela, will “likely raise a series of significant objections to the prosecution” like those Noriega attempted, Steve Vladeck, CNN legal analyst and professor at Georgetown University Law Center, said in his “One First” newsletter.

The case will likely involve “novel constitutional and international law arguments” that may attract some high-profile top criminal defense attorneys, CNN senior legal analyst Elie Honig said Saturday. “We’ve really seen very little like this.”

Noriega’s arguments were ultimately unsuccessful — he was tried and convicted in 1991 and given a 40-year prison sentence. (Following his sentence in 1992, a federal judge ruled the former dictator was a prisoner of war and should be afforded certain rights in prison, though judges cannot assign people to specific prison facilities and their ability to enforce such rulings can be limited.)

A critical factor in his failed defense was that US courts “refused to consider the legality of the invasion itself,” Clark Neily of the libertarian think-tank Cato Institute pointed out in an article Saturday.

“Federal courts held that the manner in which a defendant is brought before a US court—even by force, even from foreign soil—does not defeat criminal jurisdiction,” Neily wrote.

If Maduro attempts to argue he was illegally brought to the US, there is case law outlining why defendants can still be prosecuted in the United States even if they were brought there unlawfully.

If pushed to justify Maduro’s arrest, prosecutors may point to a 1989 memo from the Justice Department’s Office of Legal Counsel’s William Barr, claiming that a president had “inherent constitutional authority” to order the FBI to take people into custody in foreign countries, even if it violated international law to do so.

Barr would later become attorney general in that Bush administration and Trump’s first administration. His memo remains controversial among legal scholars.

“The tougher nuts for prosecutors to crack will be Maduro’s arguments that he’s entitled to some kind of immunity,” Vladeck said, “whether because he was Venezuela’s ‘head of state’ or because, even if he wasn’t, his alleged crimes all arise from official acts conducted with governmental authority.”

In Noriega’s case, courts deferred to the executive branch’s decision that Noriega was not entitled to immunity and the “clearly illegal nature of the alleged acts.” That case, however, had one important difference — the State Department did not recognize Noriega as the head of Panama.

Whether courts will reconsider that precedent because of Maduro’s status as president is yet to be seen, though the Justice Department referred to him in the indictment unsealed Saturday as the “de facto but illegitimate ruler” of Venezuela.

Ultimately, “the prosecution will be no slam dunk,” Vladeck concluded. “Especially with regard to the charges against Maduro himself.”

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