On the Legality of the Venezuela Invasion
Executive branch precedents can be garnered to support the action—which does not, of course, mean that it is lawful.
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I’ve been bombarded today with the question: Is the U.S. invasion of Venezuela lawful?
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.
Below is my quickly written explanation for this conclusion, but of course the analysis is preliminary since there is much we do not yet know.
Domestic Law
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. It specifically concluded:
1. The FBI’s statutory arrest authority “authorize[s] extraterritorial investigations and arrests.”
2. The President could lawfully order an extraterritorial arrest pursuant to the FBI’s statutory arrest authority even if it violated customary international law in impinging “on the sovereignty of other countries.”
3. Even if those FBI authorizing statutes were limited by customary international law, the Constitution’s “take Care” Clause empowered the president to authorize federal agents to make arrests abroad that violate customary international law. (The opinion here relied on In re Neagle, the main Supreme Court precedent for the president’s “protective power” that has been invoked in recent domestic deployments.)
4. Article 2(4) of the U.N. Charter, which prohibits the “use of force against the territorial integrity” of any state, does not “prohibit the Executive as a matter of domestic law from authorizing forcible abductions” abroad. Put another way, “as a matter of domestic law, the Executive has the power to authorize actions inconsistent with Article 2(4) of the U.N. Charter.”
5. The president has authority to delegate these powers to violate international law in extraterritorial enforcement actions to the Attorney General.
6. A U.S. arrest abroad “in violation of foreign law does not violate the Fourth Amendment.”
President Trump in his press conference today did not provide a legal justification for the invasion. But Secretary of State Marco Rubio represented to Senator Mike Lee that the arrest of Venezuelan President Nicolás Maduro and his wife for violating U.S. law was the primary justification for the Venezuela action. And at today’s press conference Rubio said that “at its core, this was an arrest of two indicted fugitives of American justice, and the Department of War supported the Department of Justice in that job.” This rationale is consistent with Secretary of Defense Pete Hegseth’s claim that it was a “joint military and law enforcement raid” and General Dan Caine’s claim that it was an “apprehension mission.”
Given these explanations, the Barr opinion justifying extraterritorial law enforcement actions will likely be presented as the main domestic legal foundation for the action.
As for the boots on the ground and the kinetic uses of force, those appear to have been justified “to protect and defend those executing the arrest warrant.” This is a form of Article II self-defense argument with a long lineage. It is most akin to the “unit self-defense” that is often invoked when U.S. troops deployed abroad in violation of foreign sovereignty face “a hostile act or demonstrated hostile intent.”
Yes, it seems like bootstrapping, or worse, to say that the United States can arrest a foreign dictator on foreign soil in violation of foreign sovereignty and then invoke the self-defense of the arresting forces to bomb the country. But this is where the logic of the executive branch precedents leads. As Rebecca Ingber has explained, unit self-defense could justify “the United States using force against non-state actors who do not even have the capacity to threaten U.S. territory, in a state that has not attacked the United States, providing the groundwork for a future escalation with either that non-state actor or the state itself—and all without authorization from Congress.”
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. As one outstanding recent study concluded about multiple American interventions in (among other nations) Cuba, Panama, the Dominican Republic, Nicaragua, Honduras, Mexico, and the Danish West Indies:
Over the late nineteenth and early twentieth centuries, the United States went on a regional rampage of staggering scope and scale. There were coups and counter-coups, protectorates and annexations. Invasions were followed by occupations, and occupations by insurgencies and counterinsurgencies. Foreign capitals grew used to American marines policing their streets and American warships patrolling their waters. American policy became practically synonymous with intervention, the use or threat of force to coerce a state into exercising its sovereign functions in a particular way.
An important possible limit on the president’s unilateral power recognized in the DOJ opinions is that congressional authorization might be needed for “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” This limit could become relevant since President Trump announced today that the United States is going “to run the country until such time that we can do a safe, proper and judicious transition.” It is unclear at this point what the U.S. military role will be in Venezuela or whether the military will be involved in “prolonged and substantial military engagements” that expose U.S. military personnel “to significant risk over a substantial period.”
Also potentially relevant is the 1973 War Powers Resolution matter. That law requires the president to notify lawmakers within 48 hours of the introduction of U.S. forces into hostilities. It also requires the president (with loopholes) to “terminate any use of United States Armed Forces with respect to which such report was submitted” within 60 or (with an extension) 90 days.
This deadline might in 90 days be implicated by a continued U.S. military presence in Venezuela. Depending on what that military presence looks like, the Trump administration could invoke a variation of the Obama administration gambit in Libya to blow through the statutory time limits because the United States is not engaged in “hostilities” in Venezuela. Or it could simply disregard the WPR time limits on the ground, expressed by many administrations starting with Richard Nixon’s, that they are unconstitutional intrusions on the president’s war powers.
International Law
I noted above that DOJ has concluded that the U.N. Charter’s prohibition on the use of force does not constrain the executive branch’s domestic legal authority to invade another country to make an arrest. But the Venezuelan intervention pretty clearly violates the Charter, even if there are no domestic legal implications from that violation and even if international law here lacks any enforcement mechanism.
It will be interesting to see if the Trump administration tries to claim that it acted consistently with the Charter. Perhaps it will say, as it was said of the 1999 Kosovo intervention, that the action was “illegal but legitimate.” Or perhaps it will argue, as the United States did in the 1983 invasion of Grenada and the 1989 invasion of Panama, that the United States was defending U.S. persons there. Or perhaps it will, as it so often has in other contexts, simply blow off international law.
Since the United States plans (as President Trump said) to “run the country” for an indefinite period, it will be an occupying power and that occupation will be governed by international law—primarily the Fourth Geneva Convention. As the DOD Law of War Manual explains: “Military occupation is a temporary measure for administering territory under the control of invading forces, and involves a complicated, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied territory.”
There are a lot of international law rules and restrictions that purport to govern what the United States can do as an occupying power. They are well explained in Part XI of the Law of War Manual. I don’t have space here to review them, but suffice it to say that these rules will touch on President Trump’s stated aim of “tak[ing] back the oil” and “get[ting] reimbursed.” We will see if the administration takes these rules seriously.
Conclusion
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.
Thanks to Ema Rose Schumer and Tia Sewell for editorial assistance