“It was a brilliant operation, actually.” So claimed Donald Trump early this morning in a phone call with The New York Times about the US military’s overnight invasion and bombing of Venezuela, culminating in the abduction of Venezuelan president Nicolás Maduro and his wife, who have been brought to New York to face an indictment for drug smuggling.
It was an illegal operation, actually. Illegal on so many fronts that it can be challenging to keep them straight. First, and most importantly, it violates the bedrock rule of international law, which prohibits nations from attacking other sovereign states except when authorized by the UN itself or when acting in self-defense. Trump has invoked self-defense for all his aggressive actions against Venezuela, from summarily executing at least 115 people in unprovoked assaults from the air on boats alleged to be carrying drugs in international waters, to destroying a loading dock in the country itself and, now, bombing Caracas and abducting Maduro. The basis for that claim, Trump insists, is that Maduro has facilitated the smuggling of drugs into the United States, and that those drugs in turn kill thousands of Americans each year. But self-defense applies only in response to an actual or imminent armed attack, and whatever else drug smuggling might be, it is not even conceivably an armed attack. (According to US records, moreover, Venezuela is not even a source of fentanyl, the lethal drug that has been the agent of many of those overdose deaths and that Trump recently labeled a “weapon of mass destruction.” It mostly comes from Mexico.) Quite simply, Venezuela has not attacked the United States. The only nation with a self-defense justification here is Venezuela.
The attack also violated the US Constitution, which gives Congress, not the president, the power to declare war and authorize the use of military force. The only situation in which presidents can constitutionally conduct unilateral military action is, again, in self-defense against an ongoing or imminent armed attack. The Venezuelan operation also violated the War Powers Resolution, which requires the president to notify Congress before introducing troops into any situation of ongoing or imminent hostilities.
That fact that Maduro was indicted doesn’t remotely authorize the military action. First, this was not a mere law enforcement operation; it was regime change. In a press conference earlier today, Trump admitted as much: “We don’t want to be involved with having somebody else get in and we have the same situation that we had for the last long period of years,” he said. “So we are going to run the country until such time as we can do a safe, proper, and judicious transition. And it has to be judicious, because that’s what we’re all about.” He singled out one aspect of that “transition” in particular:
As everyone knows, the oil business in Venezuela has been a bust…. We’re going to have our very large United States oil companies—the biggest anywhere in the world—go in, spend billions of dollars, fix the badly broken infrastructure, the oil infrastructure, and start making money for the country. And we are ready to stage a second and much larger attack if we need to do so.
That is not law enforcement; it is imperialism, pure and simple.
Second, trying Maduro contravenes the principle of international law that heads of state are absolutely immune from trial in the courts of a foreign country. Trump should know; after all, he successfully argued in the US Supreme Court that he himself had immunity from criminal prosecution for “official acts” in his own country, even after he left office. Yet if what he is doing to Maduro is lawful, it would be just as lawful for another nation to capture Trump and put him on trial in their own courts.
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Trump’s escalating military attacks against Venezuela are not entirely unprecedented. He is, after all, far from the first president to attack buildings or even to kill people abroad on the basis of assertions of self-defense. In 1998 Bill Clinton ordered the bombing of a pharmaceutical factory in Sudan, allegedly to prevent Osama bin Laden from gaining access to nerve gas after al-Qaeda attacked US embassies in Kenya and Tanzania. (Clinton’s claim that the factory had anything to do with nerve gas was never proved.) After September 11 George W. Bush authorized military strikes against suspected al-Qaeda militants in multiple foreign countries, often killing innocent civilians in the process. Barack Obama ordered the assassination of bin Laden in Pakistan, as well as numerous drone strikes against other suspected terrorists elsewhere, including Anwar al-Awlaki, a US citizen killed in Yemen. These actions raised many difficult legal questions under international law and the law of war, some of which I have written about in these pages.1 In many cases the attacks were illegal, and to some extent they paved the way for Trump’s assault on Venezuela.
But in other respects Trump’s “brilliant operation” is unprecedented in modern US history. These earlier strikes were in response to actual or threatened attacks on the US. By contrast, Trump’s unilateral actions against Venezuela were entirely unprovoked. The implication of the administration’s reasoning is that countries can use military force anytime they are unhappy with how another country regulates or fails to regulate conduct within its borders that could have injurious effects elsewhere. But this is ludicrous. By the administration’s logic, Canada could start shooting Americans suspected of carrying drugs over the US–Canada border, or bomb buildings in the US that it claimed were being used to manufacture the drugs. Mexico could do the same with respect to American manufacturers of guns that are routinely used in gang violence, which kills many thousands of Mexicans each year. In June the US Supreme Court ruled that a federal law barred Mexico from suing Smith & Wesson and other American gunmakers for the deaths and injuries their weapons facilitated. But if Trump’s reasoning were sound, Mexico need not have bothered with the nicety of filing a lawsuit. It could simply bomb Smith & Wesson out of existence as a matter of “self-defense.”
Drug smuggling is a time-honored profession, if not the oldest then certainly in the running for second place. Reasonable people can differ about whether criminal prohibitions are an effective response to the problem. Like Prohibition, criminalizing drugs is a failed experiment. It increases prices, incentivizes a black market, frustrates health regulation and treatment, and foments violence by the gangs that arise to meet the demand. But the answer to the failure of Prohibition was not to summarily execute bootleggers and moonshiners. So, too, the answer to the failed war on drugs is not to start an actual war with Venezuela.
The closest precedent for Trump’s latest actions might be the capture and trial of Manuel Noriega in Panama in 1989. There, too, we invaded another country in order to put its ostensible leader on trial. But that action was widely condemned as illegal—not a precedent to be proud of, much less repeated. And the situation in Panama was materially different in several respects. Panama had declared a “state of war” with the United States and killed a US marine, and we had an enormous Air Force base and thousands of American citizens in the country who we claimed were at risk.
Venezuela, by contrast, neither engaged in nor conducted any hostilities against us—even after we killed over a hundred civilians in illegal summary executions from the air, blockaded their oil tankers, and destroyed a loading dock in their country. In retrospect, it is clear that Trump was baiting Maduro, trying to draw him into war. He never took the bait. But that didn’t stop Trump. We now “run the country”—and seem poised to control its oil. Brilliant, actually.
English (US) · 