The United States’ seizure of President Nicolás Maduro of Venezuela and President Trump’s declaration that the United States will “run the country” for now raise a host of extraordinary legal issues at the intersection of international law and presidential power.
The Trump administration has not yet publicly detailed its legal reasoning. But earlier operations and comments by Marco Rubio, the secretary of state and President Trump’s national security adviser, offer potential insights.
In 1989, when the Bush administration invaded Panama to capture its strongman leader, Manuel Noriega, it styled the operation as military support for law enforcement. Like Mr. Maduro, Noriega had been indicted in the United States for drug trafficking. The Pentagon similarly described the Maduro operation as “support” for the Justice Department.
Here is a closer look.
Is it legal for the U.S. to ‘run’ Venezuela?
Shortly after declaring that United States would “run the country” at a news conference, Mr. Trump seemed to suggest that his plan was to pressure Mr. Maduro’s vice president, Delcy Rodriguez, to simply obey him.
Asked in an interview with The New York Post if U.S. troops would be deployed to help run Venezuela, Mr. Trump replied, “No, if Maduro’s vice president — if the vice president does what we want, we won’t have to do that.” (He also suggested to reporters that he was “not afraid of boots on the ground,” particularly regarding the country’s oil.)
That raises the question of how the U.S. president intends to run Venezuela if Ms. Rodriguez balks. Mr. Trump has not said how this could happen and on what legal basis, leaving multiple experts in international and national security law puzzled.
Rebecca Ingber, a professor at the Cardozo School of Law and a former senior State Department lawyer, said that she did not see a legal means for the United States to “run” Venezuela.
“This sounds like an illegal occupation under international law, and there is no authority for the president to do it under domestic law,” she said, adding: “It’s unclear what he has in mind, but presumably he’d need some funding from Congress to do it.”
Panama offers only a limited guidepost. In 1989, Guillermo Endara, an opposition candidate who was seen as the winner of a presidential election that May when Noriega nullified its results, was swiftly sworn in as president of Panama on a U.S. military base.
It was Mr. Endara, however, who then ran Panama, including taking steps like abolishing the Panamanian military and building a new national police force. The United States helped him, but President George H.W. Bush did not purport to directly run Panama as an occupying power.
Did Maduro’s extraction violate international law?
It appears to violate the United Nations Charter, a treaty the United States has ratified.
Under Article 2(4) of the charter, a nation may not use force on the sovereign territory of another country without its consent, a self-defense rationale, or the authorization of the U.N. Security Council.
Most of the time, when the United States uses force abroad without U.N. approval — like some counterterrorism drone strikes — it does so with the permission of a host government and under a claim of self-defense.
Arresting someone to stand trial, however, is a law enforcement operation, not self-defense. In 1989, a majority of the United Nations Security Council voted to condemn the Panama invasion, although the United States vetoed the resolution. The U.N. General Assembly voted 75 to 20 to deem it “a flagrant violation of international law and the independence, sovereignty and territorial integrity of states.”
Does the U.N. prohibition matter under U.S. law?
This is where things get more complicated.
The Constitution makes ratified treaties part of the “supreme law of the land” and also requires presidents to “take care that the laws be faithfully executed.” But executive branch lawyers have put forward theories that the Constitution sometimes empowers presidents to lawfully override the limits of international law on using force abroad.
In the Panama intervention, for instance, an opinion by the Justice Department’s Office of Legal Counsel claimed Mr. Bush had inherent constitutional power to deploy the F.B.I. abroad to arrest a fugitive from U.S. criminal charges, even if such an operation violated international law. The opinion was signed by the future attorney general, William P. Barr.
Mr. Barr’s reasoning — when it later came to light — has attracted significant criticism by legal scholars. Brian Finucane, a former senior State Department lawyer, in a 2020 law review article, argued that Mr. Barr’s memo had mistakenly conflated two issues.
One is a narrower question: whether and when a U.S. court can enforce a ratified treaty if Congress has not separately enacted a statute that repeats its terms. The other is whether all ratified treaties count as the kind of law that presidents are constitutionally bound to obey “whether or not courts can enforce it,” Mr. Finucane said in an interview.
He and others have asserted that presidents are bound by the U.N. Charter — and were understood to be at the time it was ratified — even if no court can order presidents to obey it. But there is no definitive Supreme Court ruling on the U.N. Charter question.
What about U.S. bombings in Venezuela?
Gen. Dan Caine, the chairman of the Joint Chiefs of Staff, said the United States had destroyed air defenses in Venezuela as the helicopters carrying the extraction team approached. Afterward, videos posted on social media showed explosions in Caracas.
Senator Mike Lee, Republican of Utah, said on social media early Saturday morning after reports of the operation that he looked forward “to learning what, if anything, might constitutionally justify this action in the absence of a declaration of war or authorization for the use of military force.”
Hours later, Mr. Lee said that Mr. Rubio had called him to tell him that “the kinetic action we saw tonight was deployed to protect and defend those executing the arrest warrant.” He added: “This action likely falls within the president’s inherent authority under Article II of the Constitution to protect U.S. personnel from an actual or imminent attack.”
That sounds like an invocation of the doctrine of inherent protective power. The idea, which dates to the late 19th century, is that the Constitution empowers the president, without any need for a specific statutory authorization from Congress, to use military force to protect federal personnel as they enforce federal law.
The Trump administration has recently invoked that doctrine in deploying troops under federal control to Los Angeles in the name of protecting immigration agents from protesters.
General Caine said there were several instances in which helicopters came under fire and returned it. That might touch on a separate doctrine, involving the inherent authority of deployed units to fire in their own self-defense.
What about Maduro’s wife?
Cilia Flores, Mr. Maduro’s wife, was not part of Mr. Maduro’s 2020 indictment but was also captured and is being brought to the United States for prosecution. Attorney General Pam Bondi announced that she had been indicted, too.
On Saturday, a court unsealed a superseding indictment that added her as a defendant. The date was redacted, but the U.S. attorney who presented it, Jay Clayton, took office last year.
Will U.S. courts care about the circumstances of their capture?
Probably not. Even if Mr. Maduro can make the case that his arrest was unlawful under the U.N. Charter, U.S. courts still appear to have jurisdiction to oversee his prosecution on charges of violating domestic law.
Several cases, including in 1886, 1952, and 1992, rejected challenges by criminal defendants who said they had been unlawfully brought into the custody of the court where they were being tried. The principle is that a defendant’s presence is what matters, not how he got there.
Does Maduro have immunity as a head of state?
It is a longstanding principle of international law that heads of state have immunity in foreign courts. The Supreme Court has recognized that constraint dating back to an 1812 opinion that says “the person of the sovereign” is exempt from arrest or detention within a foreign territory.
Whether Mr. Maduro is entitled to such immunity, as his defense lawyers will surely argue, could turn on the potential difference between merely being the de facto leader of a country and being its politically recognized head of state — and who gets to decide which is which.
Notably, Mr. Rubio has repeatedly declared that Mr. Maduro is not the legitimate president of Venezuela, but instead should be seen as the head of a drug trafficking organization masquerading as a government — a claim he repeated on Saturday.
After Noriega’s arrest, he invoked immunity as a foreign head of state, but the Bush administration argued he was not entitled to it. A district court judge ruled against Noriega and an appeals court upheld that ruling.
That reasoning turned not just on the fact that Mr. Bush declined to recognize Noriega as Panama’s head of state. It also turned on Panama’s own law: Its constitution made its head of state an elected president, while Noriega was a military leader and never claimed to be its president.
Mr. Maduro’s status is more complicated. A former vice president of Venezuela, he became its interim president after his predecessor, Hugo Chávez, died in office. Mr. Maduro then won a close election in 2013. The United States recognized him for years as president of Venezuela.
Venezuela’s National Electoral Council formally declared Mr. Maduro the winner of elections in 2018 and 2024. But the results were widely seen as marred by fraud, and since 2019, the United States under both Mr. Trump in his first term and President Joseph R. Biden Jr. have not recognized Mr. Maduro as the legitimate president.
Citing a 2015 Supreme Court precedent that says presidents have absolute authority to recognize foreign governments, Professor Ingber predicted that “the Supreme Court will likely rule that Trump has the power to deny recognition to Maduro for the purpose of head of state immunity.”
Carol Rosenberg and Eric Schmitt contributed reporting.
Charlie Savage writes about national security and legal policy for The Times.
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