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In an unusual military campaign, the United States launched a major military operation in Caracas, Venezuela, early Saturday, where special forces captured President Nicolás Maduro and his wife. There is a pending 2020 trial for Maduro in the Southern District of New York where he is expected to be taken to face trial.
The project comes shortly after the 37th anniversary of the capture of Manuel Antonio Noriega on December 20, 1989. Noriega was convicted of drug trafficking and money laundering and sentenced to 40 years in prison. He was tried in Miami.
Venezuela’s acting President Nicolas Maduro waves to his supporters as he leaves after voting to replace late President Hugo Chavez, in Caracas on April 14, 2013. (Carlos Garcia Rawlins/Reuters)
Maduro was indicted on four counts in his capacity as Diosdado Cabello Rondón, 56, head of the National Constituent Assembly of Venezuela; Hugo Armando Carvajal Barrios aka “El Pollo,” 59, former director of military intelligence; Clíver Antonio Alcalá Cordones, 58, former General in the Venezuelan army; Luciano Marín Arango aka “Ivan Marquez,” 64, a member of the Secretariat of the FARC, the highest body of the FARC leadership; and Seuxis Paucis Hernández Solarte aka “Jesús Santrich,” 53, a member of the FARC’s Central High Command, the FARC’s second-in-command.
This operation will be justified as a criminal warrant and in response to an international drug cartel, a legal framework very similar to that used against Noriega. There is a precedent supporting that previous performance, which will now be used to defend the actions in Venezuela.
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Here is part of an earlier explanation from the Department of Justice about the alleged conduct:
“Maduro helped manage and eventually lead the Cartel of the Suns, a Venezuelan drug-trafficking organization made up of high-ranking Venezuelan officials. As he gained power in Venezuela, Maduro engaged in corrupt and violent activities. a terrorist plot and the Revolutionary Armed Forces of Colombia (FARC), a designated foreign terrorist organization. Maduro negotiated the shipment of tons of cocaine produced by the FARC; directed the Cartel of the Suns to supply the FARC with military-grade weapons; coordinated with drug traffickers in Honduras and other countries to facilitate large-scale drug trafficking; and requested assistance from the FARC leadership in training an unauthorized militia that was, in effect, an armed unit of the Cartel of the Suns. In March 2020, Maduro was indicted on charges of operating a narco-terrorist, conspiracy to import cocaine, possession of firearms and destructive devices, and conspiracy to possess firearms and harmful substances in the Southern District of New York.
Protesters clash with police as they protest against the government of President Nicolas Maduro in Caracas, Feb. 22, 2014. (Carlos Garcia Rawlins/Reuters)
Democratic members were quick to criticize the project and said it was illegal. They may want to review past cases, particularly the decision related to the prosecution of Noriega after his capture by the administration of President George HW Bush.
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“Without authorization from Congress, and a majority of Americans opposed to military action, Trump has just launched an unjust, illegal strike on Venezuela. He’s saying we don’t have enough money for health care for the American people—but somehow we have unlimited money for war?” wrote Rep. Jim McGovern, D-Mass.
Trump does not need congressional approval for this type of operation. Presidents, including Democratic presidents, have launched frequent deadly attacks on individuals. President Barack Obama killed an American citizen under this “kill list” policy. If Obama can destroy an American citizen without being charged with a crime, Trump can kidnap a foreign citizen on pending charges without congressional approval.
In general, the Vienna Convention on Consular Relations and other international treaties require the United States to notify the embassy of a foreign person who is detained and detained in the United States. The notice appears to have been neglected in this case.
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In his complaint, Noriega argued that his arrest violated international law under the doctrine of head-of-state immunity. The district court rejected Noriega’s immunity claim because the United States government has never recognized Noriega as the legitimate ruler of Panama – an argument that will be made in Maduro’s prosecution.
The United States for the Eleventh Circuit also rejected the counterclaim.
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 (“US-Panama Extradition Treaty”). The Supreme Court decision in United States v. Alvarez-Machain, 504 US 655 (1992), however, we found to preclude this argument. The story was that he was kidnapped and taken to the United States in an extradition agreement. The Eleventh Circuit held:
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The article of the US-Panama Extradition Treaty on which Noriega relied in his own claim for restitution agreement contains almost identical language to the provision of the US-Mexico Extradition Treaty issued in Alvarez-Machain. See US-Panama Expansion Treaty, art. 5 (“No party to a contract shall be bound to deliver its subject or subject ․”).
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Under Alvarez-Machain, in order to succeed in an extradition treaty claim, the defendant must show, by reference to the express language of the treaty and/or the practice established thereunder, that the United States has affirmatively agreed not to take aliens from the territory of a treaty partner. Noriega has not met this burden, and therefore, his claim fails.
Noriega’s case provides enough support for the Trump administration, which has been in prison for five years. He is not viewed as the legitimate elected leader of Venezuela and is tied to a drug cartel.
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This action will also have a major impact on foreign policy. The Monroe Doctrine just became the Trump Doctrine. This action did not only confront Venezuela but also Cuba, which provided security for Maduro. In all probability, Cuban security may have been involved in putting out the fire. While cutting off important oil from Cuba, the Trump Administration has just launched a blow against the Cuban regime – arguably one of the most severe defeats since Cuban forces struck Grenada in 1983.
Legally, Trump has the upper hand in this case. Maduro will play up Noriega’s arguments, if anything, making a weak case for merits under the governing precedent.
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