The New Yorker‘s Issac Chotiner asserts “The Brazen Illegality of Trump’s Venezuela Operation,” via an interview with Yale Law professor Oona Hathaway, the president-elect of the American Society of International Law. The following are excerpts from her responses:
Unfortunately, I don’t think there is a legal basis for what we’re seeing in Venezuela. There are certainly legal arguments that the Administration is going to make, but all the arguments that I’ve heard so far don’t hold water. None of them really justify what the President seems to have ordered to take place in Venezuela.
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There is a right of self-defense under the United Nations charter, which allows states to use force in self-defense against an armed attack. But it’s never been used for something like drug trafficking.
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[W]hen the U.N. charter was written, eighty years ago, it included a critical prohibition on the use of force by states. States are not allowed to decide on their own that they want to use force against other states. It was meant to reinforce this relatively new idea at the time that states couldn’t just go to war whenever they wanted to.
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One of the claims is that Maduro is not, in fact, the leader of Venezuela. This is something that they’ve been saying for a while now—that he’s not the legitimate leader of the country, that they don’t recognize him as the head of state. And that might justify his seizure and indictment, although using military force to do that would not be justified. I don’t know how they get from there to an argument that they can use military force in Venezuela.
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As part of this military operation, at least one of the key goals seems to have been the capture of Maduro and his wife, who have been indicted for criminal charges in the Southern District of New York. The only way they can do that is if they’re claiming that he’s not a head of state, because heads of state get immunity and heads of state are not subject to criminal prosecution in the domestic courts of other states. That’s just a basic rule of international law. The United States has long recognized it.
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Maduro did clearly seize power after losing the election. But, nonetheless, he’s been acting as the head of state for quite a while, and he’s been recognized by a number of other countries as a legitimate head of state. He’s been exercising the powers of head of state. He’s been directing the military. He’s been running the country.
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The dangerous thing here is the idea that a President can just decide that a leader is not legitimate and then invade the country and presumably put someone in power who is favored by the Administration. If that were the case, that’s the end of international law, that’s the end of the U.N. charter, that’s the end of any kind of legal limits on the use of force. And if the President can do that, what’s to stop a Russian leader from doing it, or a Chinese leader from doing it, or anyone with the power to do so?
There’s more, but that’s the basic idea. I doubt you’d find a credible scholar of international law or the laws of armed conflict who would materially disagree.
But Harvard Law professor Jack Goldsmith (“On the Legality of the Venezuela Invasion“) offers a competing vantage point, that of U.S. precedent. It comports substantially with my initial take on the operation yesterday morning.
As I have argued before, there are few if any effective legal constraints on unilateral presidential uses of force. Everyone has an opinion about what those limits should be. Academics and politicians regularly maintain that this and that presidential use of force is unlawful, even though the legal framework for analysis, especially under domestic law, is contested.
But here is the reality. Congress has given the president a gargantuan global military force with few constraints and is AWOL in overseeing what the president does with it. Courts won’t get involved in reviewing unilateral presidential uses of force. And no country plausibly could stop the U.S. action in Venezuela.
That means that in practice the only normative legal framework for presidential war powers that matters derives from executive branch precedents and legal opinions. The Justice Department, if asked, easily could have drafted an opinion based on these precedents and opinions to justify the invasion of Venezuela.
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The main precedent DOJ could cite is President George H.W. Bush’s invasion of Panama in 1989 to arrest and bring strongman General Manuel Noriega to justice in the United States, in part for drug trafficking. Some will seek to distinguish the Noriega matter from the Venezuela invasion on the grounds that Panama Defense Forces had recently killed a U.S. Marine and the Panamanian National Assembly had declared that a state of war existed between the Republic of Panama and the United States.
But the Panama precedent will nonetheless matter to the Venezuela attack due to this 1989 opinion by then-Assistant Attorney General Bill Barr, issued six months before the invasion. That opinion justified FBI arrests in foreign countries under domestic law even if doing so violated international law.
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These are not the only precedents the Justice Department opinion could invoke. There is another line of precedent, summarized here, that justifies unilateral uses of presidential force in the “national interest.” Recognized national interests include the protection of U.S. persons and property, promotion of regional stability, and humanitarian concerns, all three of which could conceivably be invoked in the Venezuela context.
The DOJ opinion could also cite dozens of specific instances of past unilateral presidential uses of force stretching back at least to President Thomas Jefferson’s authorization to attack the Barbary pirates. Most on point, perhaps, are the numerous U.S. interventions in the southern hemisphere in the late nineteenth and early twentieth centuries.
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These are not the only precedents the Justice Department opinion could invoke. There is another line of precedent, summarized here, that justifies unilateral uses of presidential force in the “national interest.” Recognized national interests include the protection of U.S. persons and property, promotion of regional stability, and humanitarian concerns, all three of which could conceivably be invoked in the Venezuela context.
The DOJ opinion could also cite dozens of specific instances of past unilateral presidential uses of force stretching back at least to President Thomas Jefferson’s authorization to attack the Barbary pirates. Most on point, perhaps, are the numerous U.S. interventions in the southern hemisphere in the late nineteenth and early twentieth centuries.
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In sum, it would not be terribly hard for the Justice Department to write an opinion in support of the Venezuela invasion even if the military action violates the U.N. Charter.
To repeat, that does not mean that the action is in fact lawful—and it pretty clearly isn’t under the U.N. Charter. It only means that the long line of unilateral executive branch actions, supported by promiscuously generous executive branch legal opinions, support it. As I wrote in connection with the Soleimani strike: “our country has—through presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence—given one person, the president, a sprawling military and enormous discretion to use it in ways that can easily lead to a massive war. That is our system: One person decides.”
This is not the system the framers had in mind, and it is a dangerous system for all the reasons the framers worried about. But that is where we are—and indeed, it is where we have been for a while.
Goldsmith agrees with Hathaway that invading a sovereign state to arrest its leader is a gross violation of the basic principles of international law that the United States itself has championed for a century or more. But he also rightly notes that U.S. presidents have quite often acted in contravention of those principles—and the clear text of the U.S. Constitution!—when they have seen fit. We are not in anything like uncharted territory here.
Relatedly, there have been some rumblings in the comment section here about U.S. military personnel following “illegal orders” here in violation of their oath and their duty as professionals. That simply misapprehends what we expect of them. It is not their remit to substitute their legal or moral judgment for that of the duly elected commander-in-chief or the Justice Department; they are presumptively legal. As Goldsmith lays out, there is plenty of legal cover for the capture of Maduro.
