In recent discussions, officials from the Trump administration discreetly informed Congress members of the same stance: they currently lack the legal grounds to endorse military actions targeting land in Venezuela.
A controversial 1989 memo
The last significant instance where the U.S. military was deployed for regime change was the conflict in Iraq.
This war received Congressional authorization back in 2002. Moreover, Congress approved the broader war on terror in 2001, following the 9/11 attacks.
Since those authorizations, various administrations have occasionally used them to rationalize military interventions in the Middle East, though at times this has been questionable.
However, the situation in Venezuela presents a distinctly different scenario.
While parallels have been drawn between the Venezuela situation and Iraq, a more fitting analogy, and seemingly the one the administration aims to use, is Panama in 1989.
Like in Venezuela, Panama’s leader at the time, Manuel Noriega, was under US indictment, including for drug-trafficking. And like in Venezuela, the operation was less a large-scale war than a narrowly tailored effort to remove the leader from power.
The Justice Department’s Office of Legal Counsel in 1980 had concluded that the FBI didn’t have the authority to apprehend and abduct a foreign national to face justice. But George H.W. Bush administration’s OLC quietly reversed that in the summer of 1989.
A memo written by William P. Barr, who would later become attorney general in that Bush administration and Trump’s first administration, said a president had “inherent constitutional authority” to order the FBI to take people into custody in foreign countries, even if it violated international law to do so.
That memo was soon used to justify the operation to remove Noriega. (As it happens, Noriega was captured January 3, 1990.)
But that memo remains controversial to this day. It’s also an extraordinarily broad grant of authority, potentially allowing US military force anywhere
And the situation in Venezuela could differ in that it’s a larger country that could prove tougher to control with its leader in foreign custody. It also has significant oil wealth, meaning other countries could take an interest in what happens there next. (China has called the attack a “blatant use of force against a sovereign state”.)
In both the news conference and an interview with Fox News, Trump invoked the possibility of further military option, reinforcing that this could be about more than just arresting Maduro.
That also means the questions about Trump’s legal authorities could again be tested – just as he’s already tested them with his legally dubious strikes on alleged drug boats and other actions in the region.
What’s clear is that Trump is seeking to yet again test the limits of his authority as president – and Americans’ tolerance for it. But this time he’s doing it on one of the biggest stages yet.
And the story of his stretching of the law certainly isn’t over.
