A recent decision by a French court — paving the way for the return of former dictator Gen. Manuel Noriega to Panama after more than 20 years in prisons in the United States and France — has made a long-standing question suddenly urgent: What happened to the thousands of boxes of documents U.S. forces seized during Operation Just Cause in Panama in 1989? The surprising answer, the U.S. government recently confirmed, is that the U.S. Army still has them. The United States should immediately return these documents to Panama, where they are needed not only by historians and human rights researchers but also by attorneys on both sides of legal proceedings that will follow Noriega's return.
During the U.S. invasion of Panama to remove Noriega from office, American forces seized 15,000 boxes of documents from Noriega's offices and the Panamanian Defense Forces. The documents included everything from letters and bank account statements to sensitive secret police files and intelligence reports, and even a number of "stolen" U.S. documents.
Early on, the possibility that the seized documents might provide evidence for Noriega's drug-trafficking trial in Miami, or might corroborate politically embarrassing connections between Noriega and the CIA, made headlines. After Noriega's trial in 1992, however, during which the prosecution made scant use of the documents and the judge largely rejected evidence regarding Noriega's CIA connections as irrelevant, the subsequent fate of the documents remained a well-kept, and largely forgotten, secret. U.S. Southern Command recently confirmed to me, however, that after all these years, the seized documents from the Noriega regime are still in the custody of U.S. Army South, headquartered at Ft. Sam Houston in Texas.
The fate of the seized documents is only a part of the problem. The renewed importance of the documents brings up a complex legal question over their ownership. Under the laws of armed conflict, captured enemy property — including enemy government documents — can literally convert into the property of the capturing state as "war booty." For example, the U.S. treated a large number of German documents captured by American forces in World War II as U.S. property: The documents were only later returned to Germany as a "donation." More recently, the U.S. government similarly treated original Iraqi documents captured during the 1991 Persian Gulf War as U.S. property, which had to be destroyed in 2002 because the papers had become contaminated with mold.
According to the National Archives, however, the U.S. Department of Defense agreed to treat the original documents seized in Operation Just Cause as property of Panama. Such an agreement was consistent with the U.S. government's initial assertion that the invasion of Panama was not an "armed conflict" under international law. The United States had claimed that because a new "president of Panama" was "sworn in" on a U.S. military base an hour before the invasion, the military operations were for the benefit of the "legitimate" government of Panama.
This legal fig leaf, which had allowed the United States to reject the responsibilities of an occupying power in Panama and deny Noriega prisoner-of-war status, was later rejected by a U.S. court, which further complicates the legal status of the seized documents. As if this were not complex enough, Noriega also may have a compelling argument that a number of the documents were, and remain, his personal property, and, as a prisoner of war, his property is protected under the laws of war.
When Noriega returns to Panama, both the United States and Panama will revisit an important part of our shared history. Regardless of who technically holds title to the documents, the original documents belong in Panama as part of that country's historical record, and copies of those documents belong in the U.S. National Archives as part of our own. This is the model that was followed for captured documents from Vietnam and Grenada, and those examples should be followed now.
To be sure, as with any body of archival records, the documents undoubtedly contain information that may require legitimate protection from disclosure on national security or personal privacy grounds. But access to these documents should be as broad as such considerations will allow. For purposes of studying history, researching human rights issues, enforcing government accountability and ensuring that impending legal proceedings in Panama that involve Noriega are as informed, robust and as fair as possible, the seized documents should be returned home.
By Douglas Cox, an attorney and an associate law library professor at the City University of New York School of Law.