Use of Force, Executive Power, and Prosecution: The Venezuela Operation

By: Gerard Filitti
Senior Counsel, The Lawfare Project

Executive Summary

This Article evaluates the legality of a United States operation involving strikes in Venezuela and the capture of Nicolás Maduro Moros and co-defendants across three different but mutually reinforcing legal frames: (1) international law governing the resort to force and cross-border seizure; (2) U.S. constitutional and statutory law governing presidential authority to use force and effectuate apprehensions abroad; and (3) federal criminal law governing what the government must prove to secure convictions in the Southern District of New York (“SDNY”). In the real world, international-law analysis is inseparable from recognition and state practice; legality is argued in doctrine but decided in diplomacy, particularly when a regime is widely regarded as illegitimate, and the threat is framed as ongoing and grave. Under domestic law, the President enjoys substantial Article II authority to conduct limited strikes and to capture indicted foreign persons. However, the analysis changes when talking about occupation, administration, or governance—areas that require congressional authorization and appropriations. The criminal case is the most orthodox: it will rise or fall on evidence of agreement, knowledge, intent, and overt conduct, not on political considerations.