In 22 pages of reasoning, the Trump Administration’s Justice Department last month gave the U.S. military legal permission to go ahead with an assault on Venezuela, but only if it did not risk prolonged fighting or outright war between the two nations. The military action followed, early in the morning of January 3, and was completed quickly with no loss of life among U.S. military members.
The legal analysis, however, focused only on issues under United States law, and the memo appeared to concede – although it did not say explicitly – that the assault might violate a United Nations ban on one country invading the territory of another. Domestic U.S. law, it said, was the key issue, and the planned mission would satisfy that, it concluded.
There were passing hints in the document that, if the operation had been designed to force a change in the leadership of the government of Venezuela (that is, “regime change”), that might have been illegal under U.S. law unless Congress had authorized such a mission. It seemed apparent that the President and his government had not asked the Justice Department to give legal approval for an outright attack on Venezuela with the specific aim of ending the dictatorial regime of Nicholas Maduro, who remained in power despite losing the election. (He and his wife were seized during the attack, and are now being held in this country, awaiting trial on criminal charges, the existence of which was a factor that helped justify the finding that the mission would be legal.)
Since the Venezuelan assault, President Trump and some of his close White House aides have talked about the possibility of the use of the U.S. military to carry out a mission to bring the nation of Greenland under U.S. control. If that is, in fact, a real plan, the legal memo supporting the Venezuelan operation would be of no help. It offered a portrayal of a life of strife and want among many Venezuelans, conditions that do not exist at all on the peaceful self-governing island of Greenland, which has lived comfortably for generations in a close alignment with Denmark, one of America’s historic allies and partner in NATO.
The Justice Department released a version of the legal memo on Venezuela this week, with quite a sizeable number of blacked-out sections, apparently designed to protect secret information. But even with those deletions, the overall thrust of the paper was clear: that the President and the Pentagon, along with the Justice Department, had put together an anti-Maduro operation that was limited in scope and without a significant risk that it would widen into “war in the constitutional sense,” as the memo put it.
Between the lines, though, there were repeated signs that the legal analysts in the Department who prepared the memo had been concerned about the potential for a wider conflict than the one described to them, including the potential that some maverick nations abroad might come to Venezuela’s aid and the potential that the operation would go beyond a limited strike aimed solely at seizing Maduro, alive, as a fugitive from U.S. justice.
An issue that is always at the heart of public reaction to the use of U.S. military force abroad is whether U.S. troops will be drawn into the fighting or put on the ground to help manage the aftermath of a military strike. The legal memo mentioned that issue, and its authors seemed to have been persuaded that the Venezuelan operation, once carried out as described to them, would not necessitate any role for ground troops to that country beyond their role in the targeted strike aimed at taking Maduro captive.
Although the January 3 assault was completed in the terms anticipated by the memo, the document made absolutely no mention of President Trump’s apparent desire to follow up the assault with a major new industrial initiative by U.S. companies to revive the faltering oil industry in Venezuela. The President has claimed that those oil reserves were stolen from U.S. companies, and the U.S. government now intends to recapture them.
It is obvious, on the face of the document, that the White House and the Pentagon had not asked the legal advisors for comment on the oil aspect of the plans the President may personally have in mind.
On the assault in the terms that were given legal authorization (the mission was named ABSOLUTE RESOLVE). the memo gave five basis reasons why it would not violate U.S. domestic law:
- The core of the mission was to seize Maduro personally, as a fugitive from U.S. justice for “severe” alleged crimes, and U.S. law clearly allows the use of the military to assist in pursuing that law enforcement goal, especially since that goal could not be attained in this specific incident without military support.
- Foreign terrorist groups, like the Middle East’s Hezbollah, have set up drug operations in Venezuela and the government of Iran has shipped weapons to the Latin nation, and those add to the threat that would confront a U.S. assault even if the aim were only to seize Maduro.
- The assistance of the military would likely be necessary to protect civilians in Venezuela from actions that the Maduro regime has taken, including forcing 20 million people in that nation into poverty and widespread hunger and endangered health. “The situation has only deteriorated,” the memo remarked.
- Because Maduro controls his nation’s military forces, and because Venezuelan forces have recently been confronting the buildup of a U.S. naval fleet off of its coast, the President would have been remiss not to include military support for the operation against Maduro.
- Finally, U.S. intelligence had learned that Maduro was being protected by a sizeable group of military forces, and those were likely to resist any attempt by a U.S. team seeking to capture him from his protected enclave in a fort in the heart of Caracas. If only FBI agents were involved, the mission would fail because of the likely resistance.
After finding all of those factors supported the legality of the planned mission, the legal analysts concluded that the operation as described to them would not be out of proportion to the law enforcement goal, and would in fact “fall short of war in the constitutional sense.”
The document, though, did suggest a strong hesitancy among the Department’s lawyers to endorse an operation that would involve “boots on the ground.” They noted that their analyses over the years of the legality of military operations have always treated direct involvement of troops as requiring approval by Congress. But, in this instance, they appeared to have been satisfied by the officials who asked for legal permission to have kept the planned operation within limits that would not lead to war.
The memo noted: “We were assured that there is no contingency plan to engage in any substantial and sustained operation that would amount to a constitutional war. We were further assured that there is no contingency plan that would involve using U.S. forces occupying Venezuela should the removal of Maduro result in civil unrest in that country.”
