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

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    The Trump administration’s capture of Venezuela’s president and claims that it will “run” the country are raising stark new questions about the legality of the U.S. actions and its future operations in the South American nation.Related video above: U.S. strikes Venezuela, captures President Maduro in overnight operationThe middle-of-the-night seizure of Nicolás Maduro, who was transported with his wife on a U.S. warship to face narco-terrorism 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 elsewhere, legal experts said. It came after a surprise U.S. incursion that rocked the Venezuelan capital 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.The stunning development caps months of aggressive U.S. military action in the region, including the bombing of boats accused of trafficking drugs and seizures of oil tankers off the coast of Venezuela. The Trump administration has conducted 35 known boat strikes against vessels, killing more than 115 people since September, and positioned an armada of warships in nearby waters.The bigger debate than legality is yet to come, said John Yoo, an early architect of the George W. Bush administration’s policy in Iraq and now a law professor at the University of California, Berkeley.”It’s easier to remove a dictator,” he said, based on his experience in the Iraq War. But ensuring the transition to a stable democratic government is “the harder part.”Maduro’s arrest on anniversary of Noriega’s surrenderMaduro’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.Video below: Former Alabama exchange student reacts to Maduro captureBy contrast, Congress has not authorized any American military strike or law enforcement move against Venezuela.”The President will claim that this fits within a vast body of precedent supporting broad executive power to defend the United States, its citizens, and its interests,” Matthew Waxman, a Columbia University law professor who was a national security official in the Bush administration, said by email. “Critics will charge that this exceeds the bounds of presidential power without congressional authorization.”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 actionsTrump’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 approve 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.Congress’ Democratic leaders, Sen. Chuck Schumer and Rep. Hakeem Jeffries, demanded immediate briefings for the “gang of eight” leaders on Capitol Hill, which includes top members of the Intelligence committees, as well as for other lawmakers. Congressional leaders were not notified of the actions until after the operation was underway.”The idea that Trump plans to now run Venezuela should strike fear in the hearts of all Americans,” Schumer said. “The American people have seen this before and paid the devastating price.”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 — clearly violates international law.”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 aheadHouse Speaker Mike Johnson, R-La., said the administration “is working to schedule briefings” for lawmakers next week.Republican lawmakers in Congress largely welcomed the capture of Maduro as ridding the region of a leader they say is responsible for drug trafficking, 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.”Beyond the legality, what kind of precedent does it send?” asked Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee. He said in an interview that the rebuilding plan ahead has echoes of the Iraq War as the Trump administration promises to use Venezuela’s oil revenue to pay the costs.Waxman, the Columbia University law professor, said seizing control of Venezuela’s resources opens up additional legal issues: “For example, a big issue will be who really owns Venezuela’s oil?”The Senate is expected to try again next week to curtail Trump’s actions, with a vote expected on a bipartisan war powers resolution that would block using 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.Goodman reported from Miami.

    WASHINGTON (AP) —

    The Trump administration’s capture of Venezuela’s president and claims that it will “run” the country are raising stark new questions about the legality of the U.S. actions and its future operations in the South American nation.

    Related video above: U.S. strikes Venezuela, captures President Maduro in overnight operation

    The middle-of-the-night seizure of Nicolás Maduro, who was transported with his wife on a U.S. warship to face narco-terrorism 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 elsewhere, legal experts said. It came after a surprise U.S. incursion that rocked the Venezuelan capital 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.

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

    The bigger debate than legality is yet to come, said John Yoo, an early architect of the George W. Bush administration’s policy in Iraq and now a law professor at the University of California, Berkeley.

    “It’s easier to remove a dictator,” he said, based on his experience in the Iraq War. But ensuring the transition to a stable democratic government is “the harder part.”

    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.

    Video below: Former Alabama exchange student reacts to Maduro capture

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

    “The President will claim that this fits within a vast body of precedent supporting broad executive power to defend the United States, its citizens, and its interests,” Matthew Waxman, a Columbia University law professor who was a national security official in the Bush administration, said by email. “Critics will charge that this exceeds the bounds of presidential power without congressional authorization.”

    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 approve 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.

    Congress’ Democratic leaders, Sen. Chuck Schumer and Rep. Hakeem Jeffries, demanded immediate briefings for the “gang of eight” leaders on Capitol Hill, which includes top members of the Intelligence committees, as well as for other lawmakers. Congressional leaders were not notified of the actions until after the operation was underway.

    “The idea that Trump plans to now run Venezuela should strike fear in the hearts of all Americans,” Schumer said. “The American people have seen this before and paid the devastating price.”

    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 — clearly violates international law.

    “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

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

    Republican lawmakers in Congress largely welcomed the capture of Maduro as ridding the region of a leader they say is responsible for drug trafficking, 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.

    “Beyond the legality, what kind of precedent does it send?” asked Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee. He said in an interview that the rebuilding plan ahead has echoes of the Iraq War as the Trump administration promises to use Venezuela’s oil revenue to pay the costs.

    Waxman, the Columbia University law professor, said seizing control of Venezuela’s resources opens up additional legal issues: “For example, a big issue will be who really owns Venezuela’s oil?”

    The Senate is expected to try again next week to curtail Trump’s actions, with a vote expected on a bipartisan war powers resolution that would block using 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.

    Goodman reported from Miami.

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  • Trump slams judge he picked as court tests limits of president’s power to deploy troops

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    President Trump has often locked horns with the 9th Circuit Court of Appeals, with the once left-leaning court putting a persistent drag on his first-term agenda.

    And now, even after remaking the bench with his own appointees, the president is still tangling with the West Coast’s federal appellate court — a situation poised to boil over as the circuit juggles multiple challenges to his use of the National Guard to police American streets.

    “I appointed the judge and he goes like that — I wasn’t served well,” Trump told reporters Sunday, lashing out at U.S. District Judge Karin Immergut of Portland after she temporarily blocked the deployment of federalized troops.

    “To have a judge like that, that judge ought to be ashamed of himself,” Trump said, referring to Immergut, who is a woman.

    The president has long railed against judges who rule against him, calling them “monsters,” “deranged,” and “radical” at various points in the past.

    Trump has also occasionally sniped at conservative jurists, including U.S. Supreme Court Chief Justice John Roberts, whom he called “disgraceful” after the court rejected his bid to overturn the 2020 election.

    But this weekend’s spat marked a shift in his willingness to go after his own appointees — a turn experts say could become much sharper as his picks to the appellate bench test his ambition to put boots on the ground in major cities across the U.S.

    “The fact that a pretty conservative judge ruled the way she did is an indication that some conservative judges would rule similarly,” said Ilya Somin, a law professor at George Mason University and a constitutional scholar at the Cato Institute.

    The 9th Circuit handed the administration an early victory in the troop fight this spring, finding that courts must give “a great level of deference” to the president to decide whether facts on the ground warrant military intervention.

    That ruling is set to be reviewed by a larger appellate panel, and could ultimately be reversed. The circuit is also now set to review a September decision barring federalized troops in California from aiding in civilian law enforcement, as well as Immergut’s temporary restraining order blocking the deployment over the weekend.

    In the meantime, the 9th Circuit’s June decision has served as a guidepost for states seeking to limit what Oregon called a “nationwide campaign to assimilate the military into civilian law enforcement.”

    “That decision is binding, and it does require a substantial degree of deference on the factual issues,” Somin said. “[But] when what the president does is totally divorced from reality, that limit is breached.”

    Immergut appeared to agree, saying in her ruling that circumstances in Portland this fall were significantly different than those in L.A. in the spring. While some earlier protests did turn violent, she wrote, recent pickets outside Portland’s ICE headquarters have featured lawn chairs and low energy.

    “Violence elsewhere cannot support troop deployments here, and concern about hypothetical future conduct does not demonstrate a present inability to execute the laws using nonmilitary federal law enforcement,” the judge wrote, addressing the 9th Circuit decision.

    “The President is certainly entitled ‘a great level of deference,’” Immergut continued. “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground. … The President’s determination was simply untethered to the facts.”

    But exactly where the appellate court may draw the line on presidential fact-finding is tricky, experts said.

    “How much deference is owed to the president? That’s something we’re all talking about,” said John C. Dehn, a professor at Loyola University Chicago School of Law.

    Whether courts can review the president’s judgment at all is a matter that splits even some of the president’s most conservative judicial picks from his current Justice Department attorneys.

    So far, Trump has relied on an esoteric subsection of the U.S. Code for the authority to send soldiers on immigration raids and to control crowds of protesters.

    Dehn and others have characterized that reading of the code as semantic and divorced from its legal context.

    “They’re looking at the words in a vacuum and arguing the broadest possible meaning they can think of,” Dehn said. “The administration is not engaged in good faith statutory interpretation — they’re engaged in linguistic manipulation of these statutes.”

    Immegur agreed, quoting Supreme Court precedent saying “[i]nterpretation of a word or phrase depends upon reading the whole statutory text.”

    For some conservative legal scholars, Trump appointees’ willingness to push back on repeated deployments could signal a limit — or a dangerous new escalation in the administration’s attacks on jurists who defy them.

    “It’s obvious the administration is trying to do this on a bigger scale,” Somin said. “Ideally we would not rely on litigation alone to deal with it.”

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    Sonja Sharp

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