Capture of Maduro and US claim it will run Venezuela raise new legal questions

WASHINGTON (AP) — The Trump administration’s capture of Venezuela’s president and plans to “run” the country are raising stark new questions about the legality of the U.S. moves under a broader campaign against the South American nation.

The middle-of-the-night seizure of Nicolás Maduro, who was being transported on a U.S. warship to face narcoterrorism conspiracy charges in New York, is beyond even the most high-profile historical examples of aggressive American actions toward autocratic governments in Panama, Iraq and beyond, legal experts said. It came after a surprise U.S. incursion into the Venezuelan capital, rocked with overnight explosions.

“This is clearly a blatant, illegal and criminal act,” said Jimmy Gurule, a Notre Dame Law School professor and former assistant U.S. attorney.

Mark Nevitt, a former Navy attorney who now teaches at Emory University School of Law, said, “I see no legal basis for us to go into another country and take a leader without an extradition treaty.”

The stunning development caps months of aggressive U.S. military action in the region, including the bombings of boats accused of trafficking drugs and seizures of oil tankers off the coast of Venezuela. The administration has conducted 35 known boat strikes against vessels, killing more than 115 people since September.

Michael Schmitt, a former Air Force lawyer and professor emeritus at the U.S. Naval War College, said the entire operation — the boat strikes as well as the apprehension of Maduro — are a clear violation of international law.

Maduro’s arrest on anniversary of Noriega’s surrender

Maduro’s arrest came 36 years to the date of the surrender of Panama’s strongman Manuel Noriega, a notable milestone in American involvement in the Western Hemisphere. The U.S. invaded Panama in 1989 to arrest Noriega on drug trafficking charges.

In Panama, however, U.S. national security interests were directly at stake in the form of the Panama Canal as well as the safety of American citizens and U.S. military installations in the country.

By contrast, Congress has not authorized any American military strike or law enforcement move against Venezuela.

While U.S. agents have a long history of snatching defendants abroad to execute arrest warrants without authorization, federal courts have long deferred to the White House in foreign policy and national security matters.

For example, U.S. bounty hunters, working under the direction of the Drug Enforcement Administration, in 1990 abducted in Mexico a doctor accused of killing DEA agent Enrique “Kiki” Camarena.

“Courts give great deference to the president on issues related to national security,” said Gurule, who led the prosecution against Camarena’s killers. “But great deference does not mean absolute deference and unfettered authority to do anything.”

Congress has yet to authorize or ban US actions

Trump’s administration has declared the drug cartels operating from Venezuela to be unlawful combatants and has said the United States is now in an “armed conflict” with them, according to an administration memo obtained in October by The Associated Press.

The memo appears to represent an extraordinary assertion of presidential war powers, with Trump effectively declaring that trafficking of drugs into the U.S. amounts to armed conflict requiring the use of military force. That is a new rationale for past and future actions.

Congress, which has broad authority to authorize or prohibit the president’s war powers, has failed to do either, even as lawmakers from both political parties grow increasingly uneasy with the military actions in the region, particularly after it was revealed that U.S. forces killed two survivors of a boat attack with a follow-up strike.

Schmitt said there is no other way to characterize what has happened other than “as a state of war between the United States and Venezuela.”

“Lawyers call it international armed conflict,” Schmitt said. “Lay people call it war. So as a matter of law, we are now at war with Venezuela because the use of hostilities between two states clearly triggers an internal armed conflict.”

War powers vote ahead

Congressional leaders of the “gang of eight,” which includes House and Senate leaders from both political parties as well as lawmakers leading on the Intelligence committees, were notified early Saturday after operations began, according to a person who spoke on condition of anonymity to discuss the sensitive matter.

House Speaker Mike Johnson, R-La., said the administration “is working to schedule briefings” for lawmakers when they return to Washington next week.

But Democratic lawmakers warned that in veering from the rule of law, the administration is potentially greenlighting other countries such as China or Russia to do the same.

“Once this line is crossed, the rules that restrain global chaos begin to collapse, and authoritarian regimes will be the first to exploit it,” said Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee.

“America’s strength comes from our commitment to the rule of law, democratic norms, and constitutional restraint,” he said. “When we abandon those principles, even in the name of confronting bad actors, we weaken our credibility, endanger global stability, and invite abuses of power that will long outlast any single presidency.”

Next week, the Senate is expected to try again to curtail Trump’s actions, with a vote expected on a bipartisan war powers resolution that would block the use of U.S. forces against Venezuela unless authorized by Congress.

Senate Majority Leader John Thune, R-S.D., said he is grateful for the armed forces “who carried out this necessary action.” He said he spoke to Secretary of State Marco Rubio and wants more information.

“I look forward to receiving further briefings from the administration on this operation as part of its comprehensive counternarcotics strategy when the Senate returns to Washington next week,” Thune said.

Rubio said at a briefing Saturday with Trump that because of the nature of the surprise operation, it was not something that could be shared beforehand with the lawmakers.

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Goodman reported from Miami.