The American operation in Venezuela raises numerous legal questions

(Washington) The capture of Venezuelan President Nicolás Maduro, brought by force to the United States, presented by the Trump administration as a “police operation”, raises many questions as to its legality, denounce the Democratic opposition and experts.

US forces captured Nicolás Maduro and his wife, Cilia Flores, on Saturday and forcibly took them to New York to face justice. They are targeted, along with four other people, by a new indictment for “narcoterrorism” and importing cocaine into the United States.

“Fundamentally, this is the arrest of two fugitives wanted by American justice and the War Department (the Pentagon) supported the Department of Justice in this mission,” summarized American Secretary of State Marco Rubio on Saturday during a press conference with President Donald Trump.

He argued that it was therefore not a military action requiring congressional authorization.

“This authorization was not necessary because it is not an invasion. We did not occupy a country,” he insisted on ABC on Sunday. “It’s a police operation,” continued the head of diplomacy, stressing that Nicolás Maduro had been apprehended by agents of the FBI, the American federal police.

“Act of war”

But elected Democrats vigorously contest this reading of events.

“It was not just an anti-narcotics operation, it was an act of war,” said Hakeem Jeffries, the leader of the Democrats in the House of Representatives, Sunday on NBC.

“They entered Venezuela, bombed both civilian and military sites. And it is a violation of the law to do what they did without obtaining authorization from Congress,” added his Senate counterpart, Chuck Schumer.

“This arrest is problematic” in other ways, said Barbara McQuade, former federal prosecutor and law professor at the University of Michigan.

“Normally the procedure to arrest someone who doesn’t live in the United States is to go through an extradition request,” she explained on MS NOW. Instead, we are witnessing a clandestine military arrest.”

“The problem with this arrest is that it violates the Charter of the United Nations”, of which the United States is a signatory, added Barbara McQuade, recalling that the President of the United States is constitutionally obliged to ensure the execution of the laws: “Violating the Charter of the United Nations is therefore a violation of the Constitution”.

The conditions in which Nicolás Maduro was brought before American justice could allow his lawyers to request the annulment of the procedure, in particular because of the criminal immunity due to his status as head of state, she clarified, saying to expect “months of appeal from the defense”.

Panama precedent

On the other hand, Bill Barr, a former Justice Secretary during Donald Trump’s first term, said he was “very confident” that Nicolás Maduro would be convicted like Panama’s strongman, General Manuel Noriega, for drug trafficking, based on the same “legal arguments.”

Manuel Noriega had been brought to the United States after a military operation, a “very similar situation,” Bill Barr, author of the legal opinion justifying the invasion of Panama in 1989, said on Fox News. He assured that the president could order the FBI to arrest suspects abroad even if this constitutes a violation of international law and the sovereignty of other states.

“Congress has given the president a gargantuan military force with very few constraints and is unable to control what the president does with it,” while the judiciary avoids addressing these issues, writes Jack Goldsmith, a former senior Justice Department official, on his blog.

In practice, the only applicable rules therefore arise from precedents and legal opinions requested by the executive itself. “It would not be terribly difficult for the Justice Department to write an opinion supporting the invasion of Venezuela, even if this military action violates the UN Charter,” he concludes.