The legality of President Maduro’s January 3 detention remains the subject of intense debate between the Trump administration and Congressional Democrats, as well as other critics.
Was the US capture of Maduro legal?
Venezuelan President Nicolás Maduro and his wife are currently in detention following the US military attack on Caracas.
WASHINGTON – President Donald Trump praised the U.S. military operation to capture Venezuelan President Nicolás Maduro and bring him to the United States to face criminal trial for drug trafficking as “brilliant” and “brilliant,” but many legal experts say it violates domestic and international law.
The legality of the January 3 detention of President Maduro and his wife, Cilia Flores, remains the subject of intense debate between the Trump administration, Congressional Democrats and other critics. It is also a point of conflict between Washington and some foreign governments and the international community.
“These actions constitute a grave, clear and deliberate violation of the most fundamental principles of international law, set a dangerous precedent and risk destabilizing the entire region and the world,” the UN panel of experts said in a statement on January 7.
The panel of 16 “Special Rapporteurs” are independent human rights experts appointed by the United Nations Human Rights Council. Although their views do not “necessarily” represent the views of the United Nations, they have been officially published by the United Nations Human Rights Office.
The opinion is unlikely to affect whether Mr. Maduro and Mr. Flores go on trial in the Southern District of New York on drug trafficking and other charges. That’s because a decades-old Supreme Court ruling essentially says that once a person is brought to the United States on a legitimate arrest warrant, how they came to the United States doesn’t matter as to whether or not they will be prosecuted.
What does international law say?
The Committee of Human Rights Experts said the unprovoked use of force in Venezuela’s sovereign territory was a clear violation of Article 2, Section 4 of the United Nations Charter, which “unequivocally prohibits the threat or use of force against the territorial integrity or political independence of any State.”
“This may also constitute an international crime of aggression attributable to the individual political and military leaders involved,” the UN panel said.
U.N. experts also said that under international law, sitting heads of state like Mr. Maduro are immune from the criminal jurisdiction of foreign courts while in office. (Mr. Maduro’s lawyers have indicated that he intends to make this claim.)
Article 2(4) of the United Nations Charter prohibits the use of force against the territorial integrity and political independence of a sovereign State unless authorized by the United Nations or in a legitimate claim of self-defense.
In a statement published online on January 4, China condemned the detention of Maduro and Flores as a “clear violation of international law.”
“China calls on the United States to immediately release them, stop the overthrow of the Venezuelan government, and resolve the issue through dialogue and negotiations,” the statement said.
US allies in Europe and Israel praised the move, although other foreign adversaries and some Latin American countries issued similar criticisms.
What does U.S. domestic law say?
The Trump administration maintains that its actions were legally justified and part of a pressure campaign to stop Venezuela from sending cocaine to the United States.
U.S. authorities have long pursued Maduro on charges of drug trafficking and “narcoterrorism,” with the Justice Department alleging that he enabled the shipment of “thousands of tons” of the illegal drug cocaine into the United States.
Attorney General Pam Bondi said Maduro’s detention was an effort by law enforcement to bring him to the United States and “make him face justice.”
“All involved acted professionally, decisively, and in strict accordance with U.S. law and established procedures,” Bondi said in a statement.
Democrats and some legal experts say Trump needed prior approval from Congress, given the involvement of the U.S. military and the bombings that killed about 75 people in Venezuela.
Maduro’s arrest by Army Rangers, even though he was accompanied by the federal law enforcement officers who actually arrested him, violated U.S. law requiring Congressional approval for such foreign military intervention, former Pentagon general counsel Ryan Goodman told USA TODAY.
“The Constitution gives Congress the power to decide whether to use an act of war to execute an arrest warrant on foreign soil,” said Goodman, who served under President Barack Obama and is now a law professor at New York University.
The operation also violates U.S. law because it is a “serious violation of the United Nations Charter,” Goodman said.
That’s because in 1973, “the Senate voted almost unanimously in favor of the United Nations Charter, which became national law binding on the president,” he said.
The Trump administration maintains that using the military to protect law enforcement officers conducting operations abroad is not an act of war that requires Congressional approval.
Secretary of State Marco Rubio said on January 3, “Essentially, this was the arrest of two fugitives who had been indicted by the United States Attorney’s Office, and the Department of the Army assisted the Department of Justice in that work.”
Sen. Mike Lee (R-Utah) initially said on social media: “In the absence of a declaration of war or authorization for the use of military force, I look forward to learning what, if any, constitutionally justifies this action.”
However, after speaking with Rubio, Trump said the military was “deployed to protect and defend those executing the arrest warrant” and that “this action is likely within the president’s inherent authority under Article II of the Constitution to protect U.S. service members from actual or threatened attack.”
Some constitutional experts say that decades of presidents of both parties launching military invasions without Congress have effectively legalized such actions.
“Indeed, it seems arbitrary, or worse, arbitrary, to say that the United States can violate a foreign country’s sovereignty, arrest a foreign dictator on foreign soil, and then call in its own military to bomb the country,” Jack Goldsmith, a Harvard law professor who served as assistant attorney general under President George W. Bush, wrote on the website Executive Function. “But this is where the logic of executive branch precedent leads.”
President Maduro has long denied the allegations and claimed he was politically victimized. He and his wife pleaded not guilty at arraignment on January 5 in federal court in Manhattan.
Noriega’s precedent
The Trump administration also points to the 1989 U.S. invasion of Panama to capture General Manuel Noriega, who was indicted on drug charges, as a precedent.
The operation relied in part on a Justice Department opinion released several months earlier by then-Assistant Attorney General William Barr, which concluded that U.S. federal law allows for this type of extraterritorial arrest and that the president’s constitutional authority is not constrained by international law because it supersedes U.S. law.
Mr. Goodman flatly rejected that argument, saying that Mr. Barr’s Office of the General Counsel’s memo was “one of the least reliable analyzes” that was “based on easily rebuttable flaws in the functioning of treaties in domestic law.”
“No wonder Bill Barr tried to keep the memo secret from Congress and the public,” Goodman said. “The Senate Foreign Relations Committee, in a bipartisan manner, flatly rejected the Barr theory years ago. It is surprising that the Justice Department would now try to revive the Barr theory.”
At a Jan. 7 press conference, White House press secretary Caroline Leavitt responded to questions about the legality of Maduro’s attack, saying that Democrats, including then-Senate Majority Leader Chuck Schumer of New York, have long called for justice for the Venezuelan leader.
“So the hypocrisy here is really astonishing. Thank you for the opportunity to point that out,” Levitt told reporters.
Could legal issues complicate Maduro’s trial?
Mary Mason, a former senior Justice Department attorney, told USA TODAY that U.S. courts have repeatedly held that they retain jurisdiction over defendants, regardless of how they were brought to court, even if their capture violated international law.
The Supreme Court specifically affirmed this principle in a landmark 1992 case involving the kidnapping of a Mexican doctor by U.S. federal agents to stand trial in Texas for the torture and murder of Drug Enforcement Administration agent Enrique “Kiki” Camarena.
The court ultimately ruled that the United States could try Humberto Álvarez Machain because the current U.S.-Mexico extradition treaty does not explicitly prohibit abductions, said Mason, who handled the case for the Justice Department.
But Mason said the judicial decision should not be mistaken for legality.
“Just because a court refused to intervene doesn’t mean the action was legal,” Mason said, adding that he believed Maduro’s detention was clearly illegal under U.S. and international law. “That means that once the president decides to act, there are few effective checks on the system.”
