Kidnapping dictators

Dear Readers, Nicolás Maduro is locked up, facing a Southern District of New York Indictment for being a drug trafficker.  A murderous drug kingpin is facing justice and a corrupt president is deposed.  Good riddance. 

We have been down this road before. In 1989, we captured Gen. Manuel Noriega because of a drug trafficking indictment out of Miami.  Panama was freed from a murderous autocrat; he was convicted and imprisoned.

There are significant policy and legal differences.  Policy-wise, national interests were more tangible with Panama.  The Canal Zone is a major shipping route, built and depended on by us.  Ensuring the free flow of commerce and a “friendly” nation policing it mattered.

With Noriega, President George Herbert Walker Bush telegraphed his plans.  He consulted with Congress, he notified our allies and he built a clear case for protecting national and commercial interests.  Servicemen had been assaulted (one killed) by the Panama Defense Force.  South and Central American leaders unsuccessfully tried to negotiate Noriega’s surrender.  Noriega had survived two (2) internal coup d’etats, after fraudulently holding on to power, having weak internal political support.

President Bush acted under his inherent authority as our Commander-in-Chief; he did not seek advance authorization from Congress for his invasion of Panama.  The Panamanian Parliament had even issued a declaration of war against us.  Then-Assistant Attorney General William P. Barr authored an Office of Legal Counsel (OLC) opinion supportive of his authority.

In the process of our invasion, Noriega was deposed, and a successor was sworn in as President.  Our military was searching for a criminal fugitive and ex-President.  And, after Noriega was captured, Congress passed a supportive resolution approving the invasion.

The situation is dissimilar to Maduro.  Panama has 1/10th the population of Venezuela, which is roughly twice the landmass of California.  With Venezuela, there is no evidence that our commercial interests are in danger.  Unlike Panama, we have very few trade interests with Venezuela.  The same is true for the lives of American citizens; none have been threatened or killed.

If anything, Venezuela’s spiral is a regional disruption.  Some 10% of the Venezuelan population has fled to Colombia, creating a disruptive crisis for President Petro’s regime.

Maduro’s impact on drugs on our shores is unlike Noriega’s direct involvement with the flow of narcotics into Miami.  The Trump Administration has unsuccessfully tried to rally support.  No evidence has been presented that fentanyl, or really any drugs, are being trafficked through Venezuela – fentanyl is manufactured in China and the flow is through Mexican drug cartels (cocaine originating in Colombia).  The Caribbean boat strikes may be murder.

Critically, Congress was not consulted in advance of our invasion, nor does it appear a congressional resolution is on the horizon.

We signed Article 2(4) of the United Nations Charter in October 1945, restricting the use of military force against another country and requiring us to respect other countries’ sovereignty.  The UN Security Council could impose sanctions; however, the United States has a permanent-member veto, even if there was support for it, so that’s not happening.  Further, it will be hard for Russia and China, also permanent members, to justify sanctions, given the invasion of Ukraine and China’s saber-rattling concerning Taiwan.

At home, politics aside, the question is Congress’s role in our invasion of Venezuela.  Article I, Section 8, of our Constitution vests war powers in Congress to “declare war, raise and support armies, maintain a navy, and make rules for the armed forces.”  Yes, a President commands our war-making infrastructure, but it is financed and authorized by Congress.

Other Presidents have been less reckless.  On December 8, 1941, Franklin Delano Roosevelt spoke of “a date which will live in infamy,” in a joint address before Congress after Pearl Harbor was bombed the day before by Japan.  He did not just react; he asked for authority to enter the Allies’ side in World War II.  In 2001, President George W. Bush asked for a resolution from Congress to invade Afghanistan and Iraq.  A decade later, President Obama relied on this same authorization to assassinate Osama bin Laden.

President Trump has none of this support.  He has not made the case to the American people; he does not even have an OLC memo, and he most certainly does not have the support of the American people and Congress.

Snatching Maduro, a murderous sitting President of a country, may feel like the right thing, but it is illegal both under international law and our Constitution.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.