In an extraordinary military operation, the United States launched a large-scale military operation early Saturday in Caracas, Venezuela, during which special forces seized President Nicolás Maduro and his wife. An indictment against Maduro is pending in 2020 in the Southern District of New York, where he is expected to be prosecuted.
The operation comes not long after the 37th anniversary of Manuel Antonio Noriega’s capture on December 20, 1989. Noriega was convicted of drug and money laundering crimes and sentenced to 40 years in prison. He was tried in Miami.
Acting Venezuelan President Nicolás Maduro waves to supporters as he leaves after voting for late President Hugo Chavez’s successor in Caracas on April 14, 2013. (Carlos Garcia Rawlins/Reuters)
Maduro was charged in a four-count superseding indictment with Diosdado Cabello Rondón, 56, head of Venezuela’s National Constituent Assembly; Hugo Armando Carvajal Barrios, aka “El Pollo”, 59, former director of military intelligence; Clíver Antonio Alcalá Cordones, 58, former general in the Venezuelan armed forces; Luciano Marín Arango, aka “Ivan Marquez”, 64 years old, member of the FARC Secretariat, the FARC’s highest leadership body; and Seuxis Paucis Hernández Solarte, aka “Jesús Santrich,” 53, a member of the FARC Central High Command, the FARC’s second-highest leadership body.
This operation will be justified in execution of the criminal order and in response to an international drug cartel, a legal framework very similar to that of Noriega. There is precedent supporting this earlier operation, which will now be used to defend the actions in Venezuela.
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Here is part of the Justice Department’s earlier description of the charged conduct:
“Maduro helped manage and eventually lead the Cartel of the Suns, a Venezuelan drug trafficking organization made up of high-ranking Venezuelan officials. When he came to power in Venezuela, Maduro participated in a corrupt and violent narco-terrorist conspiracy with the Revolutionary Armed Forces of Colombia (FARC), a designated foreign terrorist organization. Maduro negotiated multi-ton shipments of FARC-produced cocaine; ordered the Cartel of the Suns to supply military-grade weapons to the FARC; coordinated with narcotics traffickers in Honduras and other countries to facilitate large-scale drug trafficking; and requested help from the FARC leadership in training an unsanctioned militia group that essentially functioned as a military unit for the Cartel of the Suns. In March 2020, Maduro was indicted in the Southern District of New York on charges of narcoterrorism, conspiracy to import cocaine, possession of machine guns and destructive devices, and conspiracy to possess machine guns and destructive devices.
Protesters confront police as they protest against the government of President Nicolás Maduro in Caracas, on February 22, 2014. (Carlos Garcia Rawlins/Reuters)
Democratic members quickly labeled the operation illegal. They may want to review previous cases, particularly the decision regarding Noriega’s prosecution after his arrest by President George HW Bush’s administration.
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“Without congressional approval, and because the vast majority of Americans opposed military action, Trump just launched an unwarranted, illegal attack on Venezuela. He says we don’t have enough money for health care for Americans – but somehow we have unlimited money for war?” wrote Rep. Jim McGovern, D-Mass.
Trump does not need congressional approval for these types of operations. Presidents, including Democratic presidents, have regularly launched deadly attacks against individuals. President Barack Obama murdered an American citizen under this “kill list” policy. If Obama can vaporize an American citizen without even a criminal charge, Trump can arrest a foreign citizen with a pending criminal charge without prior approval from Congress.
Normally, the Vienna Convention on Consular Relations and other international agreements require the United States to notify the embassy of an alien arrested and detained in the United States. An announcement seems a bit redundant in this case.
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In his appeal, Noriega argued that his arrest violated international law under the head of state immunity doctrine. The court rejected Noriega’s immunity claim as head of state because the US government has never recognized Noriega as Panama’s legitimate ruler – an argument that will be made in Maduro’s prosecution.
The United States for the Eleventh Circuit also rejected the request for immunity.
Noriega also argued that his capture violated the Treaty Providing for the Extradition of Criminals, May 25, 1904, United States of America-Republic of Panama, 34 Stat. 2851 (“U.S.-Panama Extradition Treaty”). However, the Supreme Court’s decision in United States v. Alvarez-Machain, 504 US 655 (1992), appeared to refute this argument. The question was whether he had been abducted to the United States with a replacement extradition treaty. The Eleventh Circuit was held:
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The article of the US-Panama extradition treaty on which Noriega relies for his cases extradition treaty claim contains substantially the same language as the U.S.-Mexico extradition treaty provision at issue in the Alvarez-Machain case. See the Extradition Treaty between the US and Panama, art. 5 (“None of the Contracting Parties shall be obliged to extradite its own citizen or national․”).
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According to Alvarez-Machain, to prevail on an extradition treaty claim, a defendant must demonstrate, by reference to the express language of a treaty and/or established practice thereunder, that the United States has affirmatively agreed not to seize foreign nationals from the territory of its treaty partner. Noriega did not bear this burden and therefore his claim fails.
The Noriega case provides broad support for the Trump administration, which has had an outstanding arrest warrant for more than five years. He is not seen as the duly elected leader of Venezuela and is linked to a criminal drug cartel.
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The action will also have a major impact on foreign policy. The Monroe Doctrine just became the Trump Doctrine. This action was not only a confrontation with Venezuela, but also with Cuba, which provided security around Maduro. The Cuban security service is believed to have been involved in the firefight. While the Trump administration is cutting off vital oil to Cuba, it has just dealt a blow to the Cuban regime – perhaps one of the most painful defeats since the crushing of Cuban forces in Grenada in 1983.
Legally, Trump has the upper hand in this case. Maduro will repeat the arguments from the Noriega case. However, he presents an even weaker argument on the merits under the controlling precedent than Noriega.
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