“The “law enforcement” rationale for Saturday’s attack on Venezuela is nevertheless both implausible and troubling. It offers an open-ended license for any president who wants to excise Congress from decisions about the use of military force, accelerating a trend that threatens to nullify its constitutional war powers.
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A superseding indictment that the Justice Department recently unsealed, which updates an indictment that the first Trump administration obtained in 2020, charges Maduro and several other Venezuelan officials with conspiracies involving narcoterrorism, cocaine importation, and machine gun possession. But Trump’s commitment to holding foreign leaders accountable for drug trafficking is open to question.
Just a month before invading Venezuela to serve justice on Maduro, Trump granted a “full and complete pardon” to former Honduran President Juan Orlando Hernández, who was convicted of similar charges in March 2024. Thanks to that act of clemency, Hernández served just 18 months of his 45-year sentence.
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According to the Trump administration, the president has unbridled authority to decide when such extreme measures are appropriate. Since “this was a law enforcement operation” rather than “military strikes for military purposes,” Rubio told The Washington Post, the administration did not need to notify Congress, let alone consult with legislators or seek permission.
A president who wants to attack another country, in other words, does not need an imminent threat, a declaration of war, or even an authorization for the use of military force. All he needs is an indictment, which is convenient because grand juries almost always approve charges recommended by federal prosecutors.
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We cannot blame Trump for coming up with this excuse, which President George H.W. Bush deployed against Panamanian dictator Manuel Noriega without legal trouble or any serious political repercussions. Nor can we blame Trump for the legislative branch’s abdication of its responsibilities.”
“Hours after the Senate voted to advance the war powers resolution rebuking the White House’s current and future actions in Venezuela, President Donald Trump placed “angry” calls to each of the five Republicans who crossed the aisle, according to people with knowledge of the calls.
Sens. Josh Hawley, R-Mo.; Lisa Murkowski, R-Alaska; Rand Paul, R-Ky.; Susan Collins, R-Maine; and Todd Young, R-Ind., voted with Democrats to require the administration to get congressional approval for future military action in Venezuela.
Thursday’s vote was a procedural motion, and it advances the legislation to a full Senate vote that will require a simple majority.
Soon after the vote, Trump threatened each senator with primary challenges, vowing to unseat them, the people said.”
The first action in Venezuela already required Congressional authorization and was unconstitutional!
“The U.S. Constitution gives Congress the sole authority to approve military strikes against foreign countries. Federal laws, like the War Powers Resolution, allow for unilateral executive action only in response to an imminent threat against Americans or U.S. troops. That separation of powers is fundamental to American democracy—not an optional arrangement for presidents to discard when it is politically or logistically inconvenient.
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Trump’s violation of the rule of law on Saturday morning is not without precedent. That creates some awkward considerations. Trump’s critics often want to frame him as a radical and unique threat to democracy. But, as is often the case, Trump is merely pulling levers of power that already existed. Congress shrugged off the elder Bush’s attack on Panama, which paved the way for its sequel.”
“The U.S. Constitution gives Congress the power to declare war. Bombing a foreign country’s capital and arresting its president are plainly acts of war that received no authorization from Congress. The Trump administration clearly seems to have violated the Constitution.
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If Vance were correct, all any president would need to do to start a war is have his Justice Department file charges against a foreign leader. That’s hardly compatible with Congress controlling the power to initiate hostilities.
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The most direct historical parallel to the Maduro operation would be the U.S. ouster of Panamanian leader Manuel Noriega in 1989 after he stole an election and was indicted on drug smuggling charges.
But as Ilya Somin points out, there are some important legal differences. Panamanian forces had killed a U.S. Marine in the Panama Canal Zone and captured other U.S. citizens. Also, the Panamanian government declared war on the United States.”
“As the Senate considered a resolution that would have blocked the Trump administration from using military force against Venezuela, Secretary of State Marco Rubio reportedly gave a classified briefing to key members of Congress.
In that November briefing, Rubio “indicated that the administration is not currently preparing to target Venezuela directly and didn’t have a proper legal argument for doing so,” The Washington Post reported at the time. Similarly, CNN reported that administration officials told lawmakers that “the US is not currently planning to launch strikes inside Venezuela and doesn’t have a legal justification that would support attacks against any land targets,” and that the legal justification offered for strikes against suspected drug boats traveling near Venezuela “does not extend to land targets.”
In the early hours of Saturday morning, however, American forces did attack a land target in Venezuela: Fort Tiuna, the military compound where Venezuelan leader Nicholas Marudo was holed up. According to the BBC, at least four more targets in and around Caracas were hit during the operation.
On Sunday, reporters asked Rubio about the obvious gap between what he (and other officials) told lawmakers in November and what had just unfolded in Caracas.
Rubio told the Post that the administration would need congressional approval only if it “was going to conduct military strikes for military purposes.” And this, he insisted, was not a military strike but “a law enforcement operation.”
That claim seems to contradict the description offered by President Donald Trump at his press conference on Saturday morning. Trump described Maduro’s capture as an “extraordinary military operation” unlike anything since World War II. The administration also trotted out Defense Secretary Pete Hegseth and General Dan Caine to describe in detail how U.S. forces had breeched Venezuelan defenses and successfully captured Maduro in an operation that lasted more than two hours and involved more than 200 troops.
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The Trump administration did not need Congress to sign off on specific operational choices: the time, location, forces involved, and so on. What the Constitution and relevant statutes require is that Congress authorizes the use of the military. That could have been done without jeopardizing any specific mission.
Think about Iraq. Congress approved the use of military force in October 2002. Congress did not need to approve the operational details of the invasion in March 2023. That’s the purview of the executive branch, but only after getting permission from Congress.”
“Congress is supposed to declare wars under the U.S. Constitution, and we have laws that are supposed to constrain unilateral military deployments without congressional consultation. The Trump administration has blown through both of those domestic legal prohibitions, either because it could not be bothered to get consent from Congress or it did not think it would get the votes.”
The US as a rule of law democracy, and international norms and values against military action against other countries, are under threat with this attack on Venezuela.
The Supreme Court has always had elements of reverse engineering where justices reach their conclusions based on political ideology, then reverse engineer a legal argument. Their political ideology may even design their legal philosophy from the very beginning of their legal thinking! However, the justices on the right seem to even be dropping the reverse engineering, and getting more sloppy in their legal thinking, pushing forward their political ideology and partisanship even more. Bush V Gore may have been the moment that the conservative justices crossed the Rubicon and realized that they can get away with pushing partisan, ideological agendas.
“the goal of disrupting and deterring drug smuggling would not justify a policy of summarily executing criminal suspects without statutory authorization or any semblance of due process. That is why Trump is trying to justify his bloodthirsty anti-drug strategy by calling his targets “combatants” in a “non-international armed conflict”—a term he has stretched beyond recognition.
Congress has not recognized that purported “armed conflict,” and it is a counterintuitive label for the unilateral violence exemplified by the September 2 attack. The boat that Bradley destroyed, which reportedly “turned around before the attack started because the people onboard had apparently spotted a military aircraft stalking it,” was not engaged in any sort of attack on American targets and offered no resistance. The same was true of the vessels destroyed in subsequent attacks on suspected drug boats
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The violence in such attacks is so one-sided that the government’s lawyers claim blowing up drug boats does not constitute “hostilities” under the War Powers Resolution because U.S. personnel face no plausible risk of casualties. So we are talking about an “armed conflict” that does not involve “hostilities” yet somehow does involve enemy “combatants.”
Unless you accept that baffling premise, the attempt to justify Bradley’s second strike under the law of war is incomprehensible. “Two U.S. officials have said the military intercepted radio communications from the survivors to suspected cartel members, raising the possibility that any drugs on the boat that had not burned up in the first blast could have been retrieved,” The New York Times reports. “The military, they said, interpreted the purported distress call as meaning the survivors were still ‘in the fight’ and so were not shipwrecked.”
In reality, of course, those men were not “in the fight” to begin with, because there was no “fight.” A unilateral act of aggression by U.S. forces hardly amounts to a battle, and it is hard to see how a radio call for help qualifies as the sort of “hostile act” that the Defense Department’s manual says excludes someone from “shipwrecked” status. To illustrate that exception, the manual notes that “shipwrecked persons do not include combatant personnel engaged in amphibious, underwater, or airborne attacks who are proceeding ashore.””
“While the renewed congressional interest in the legal and moral justification for Trump’s bloodthirsty anti-drug strategy is welcome, that inquiry should not be limited to the question of whether one particular attack violated the law of war.
The details of Bradley’s defense nevertheless illustrate the outrageous implications of conflating drug smuggling with violent aggression. He argues that the seemingly helpless men in the water, who were blown apart by a second missile while clinging to the boat’s smoldering wreckage, still posed a threat because they could have recovered and delivered whatever cocaine might have remained after the first strike.
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In reality, there was no “fight” to stay in. The violence exemplified by this attack is so one-sided that the government’s lawyers claim blowing up drug boats does not constitute “hostilities” under the War Powers Resolution because U.S. personnel face no plausible risk of casualties. So we are talking about an “armed conflict” that does not involve “hostilities” yet somehow does involve enemy “combatants”—who, contrary to that label, are not actually engaged in combat.
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Bradley seems to have determined that the flailing men were engaged in a “hostile act” simply by existing near a boat remnant that might have contained salvageable cocaine. As ridiculous as that position is, it is only a bit more risible than Trump’s assertion that supplying cocaine to Americans amounts to “an armed attack against the United States” that justifies a lethal military response.
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“There is a risk that the focus on the second strike and specifically the talk of ‘war crimes’ feeds into the administration’s false wartime framing and veils the fact that the entire boat-strikes campaign is murder, full stop,” Cardozo School of Law professor Rebecca Ingber, an expert on the law of war, told The New York Times. “The administration’s evolving justification for the second strike only lays bare the absurdity of their legal claims for the campaign as a whole—that transporting drugs is somehow the equivalent of wartime hostilities.””