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The Trump administration received approval from the justice department to use the military to seize Nicolás Maduro even as it declined to address whether the operation would violate international law, according to its legal memo released on Tuesday.
The dark-of-night raid to capture Venezuela’s president has raised a host of legal issues concerning the president’s power to start an armed conflict without congressional approval and possible breaches of international law.
In a 22-page memo, T Elliot Gaiser, the top lawyer at the office of legal counsel (OLC) briefly discussed international law and the UN charter, which says a nation cannot use force inside another country without its consent, a self-defense rationale or the permission from the UN security council.
But Gaiser stopped short of deciding whether the operation violated international law, arguing it did not matter as long as Donald Trump had the authority under domestic law to authorize the operation.
“To be clear, we have not reached a definitive conclusion about how international law would apply to Absolute Resolve,” Gaiser wrote, using the codename for the operation. “We do not reach the question because it is unnecessary to address the issue.”
In doing so, Gaiser effectively doubled down on the determinations of another controversial OLC memo from 1989 that decided a president could blow through the UN charter to direct the FBI to carry out “forcible abductions” in foreign territories.
That memo argued a president had inherent authority under the US constitution to “override” an international treaty like the UN charter, and was used by George HW Bush to legally justify the capture and arrest of Panama’s strongman, Manuel Noriega, on drug-trafficking charges.
The memo was signed by William Barr, then the assistant attorney general, who later served as attorney general in Trump’s first term and is known for pushing an expansive view of executive power. After the memo came to light, experts criticized it as being legally defective.
Among other contentions, since the UN charter is a multilateral treaty ratified by the US Senate, it technically has the same force as any other domestic law, which the president has a constitutional obligation to uphold.
Still, the circumstances of Maduro’s arrest are not expected to complicate the criminal case or offer him a possible legal defense at trial. Federal district courts have long held that the manner in which a defendant is brought to court has no bearing on the underlying case.
The OLC memo was released publicly after the administration started to make it available to lawmakers last week and ahead of a vote in the US Senate on a war powers resolution forcing Trump to seek congressional approval for further military action in Venezuela.
Trump faced no such constraints for the Maduro operation, in large part because the memo satisfied OLC’s two-part test: whether it served a national interest, and whether it would not be of a nature, scope and duration that rose to the level of a “war in the constitutional sense”.
Seizing Maduro served several national interests, Gaiser wrote, including that Maduro was under criminal indictment since 2020 for drug trafficking charges, while his 2024 election win being seen as fraudulent threatened instability in the region.
Gaiser warned Trump that using the military to help capture Maduro would mean the start of an armed conflict under international law, and that it was the kind of “boots on the ground” operation which was most likely to require authorization from lawmakers on Capitol Hill.
But because the administration assured him there was no plan to engage in a sustained military operation in Venezuela beyond capturing Maduro, or US troops occupying the country, Gaiser said Trump would not have to seek congressional approval.
The memo also cited several precedents for the military helping the FBI carry out arrests in a foreign territory: the arrest of an al-Qaida member tied to the 1998 Africa embassy bombings, and a Libyan militant accused of helping plan the 2012 Benghazi consulate attack.
The memo is the second major legal interpretation that the justice department has offered Trump in his expansive campaign on Venezuela.
The Guardian first reported last year that OLC had given the Trump administration approval in a classified memo dated 5 September to carry out strikes on boats identified as trafficking cocaine on behalf of drug cartels in international waters.
That memo argued drug cartels were waging armed violence against US allies through profits generated from cocaine shipments – so targeting the cocaine amounted to destroying the cartels’ war sustaining operations.
