MARY LOUISE KELLY, HOST:
All right, let's focus now on one of the big questions being asked today - is all of this legal? I'm going to turn that question to Scott Anderson, former U.S. diplomat, expert on international law and a fellow at the nonpartisan Brookings Institution. Welcome, Mr. Anderson.
SCOTT ANDERSON: Thank you for having me.
KELLY: OK, so the Trump administration says this was a law enforcement operation, and they are calling President Maduro a fugitive. From the legal vantage point, how strong is that claim, either in a U.S. criminal court, which it sounds like Nicolas Maduro is about to see the inside of, or under international law?
ANDERSON: So it's certainly true that they have an indictment against Nicolas Maduro they're certainly - almost certainly going to proceed against. They seem to be confident they can make a criminal case. It doesn't make much of a difference in terms of the domestic legal arguments about why the president could pursue this operation or the international ones. Domestically, the president's almost certainly relying on the president's inherent Article 2 authority to use military force. The executive branch asserts the president can do so with broad discretion, at least where it doesn't result, or expected to result, in a major armed conflict.
And in terms of international law, it's possible they're just going to accept that this is a violation of international law. I think more likely, we're going to see a justification be made similar to the maritime strikes against alleged narcotics traffickers, where they claim involvement in narcotics trafficking is the equivalent of an armed attack on the United States, and that triggers a right to self-defense under international law - an argument most people find a little incredible and hard to believe, but that's the argument they've made before in the context of those strikes.
KELLY: Do you find it incredible and hard to believe?
ANDERSON: I do. As I've written before in a couple different venues and talked about before with you folks, you know, that's an argument that really stretches beyond the breaking point how people have understood what an armed attack means in other contexts. Narcotics smuggling is simply not the equivalent of throwing a bomb or shooting a missile, and pretending that it is has hugely destabilizing consequences for the international system.
KELLY: Go back for a moment to the Article 2 powers that you mentioned and what exactly the president of the United States can do without congressional approval. I mean, the short answer is he just did this without congressional approval. But again, is that legal?
ANDERSON: The executive branch maintains its legal. That is a view that has never been vindicated by the courts, in part 'cause the courts very rarely confront - and when they do, often try and avoid ruling on the merits of - war powers-type questions. Notably, however, the executive branch, including the Trump administration, at least during its first term, has accepted one notable constitutional limit - maybe two - on this. One is the possibility that Congress could countermand it, and that raises novel constitutional questions that don't exist currently. But that's one possibility.
The other one is whether the armed conflict and expected hostilities would be of a nature, scope, duration that rises to what is called a war for constitutional purposes. That is a lot of terms of art that basically mean, is this going to be a major war like the Korean War, the Vietnam War? Which is where the executive branch has kind of drawn the line, saying, for those conflicts, we may well need to go to Congress for authorization. Anything shy of that, the president can do on his own.
KELLY: OK, so now we're here. We are told that the plan is that the U.S. will run Venezuela during some sort of transition. Speak to the law that would govern that. Under international law, can one country legally administer another, even temporarily?
ANDERSON: Setting aside the legality of how one entered into the state, there - in the state of being an occupation of a state - there is a set of international rules that govern when one country occupies another. But it's not clear to me those would apply here unless the Trump administration moves forward with a big ground campaign where they start exercising on-the-ground control. And it doesn't seem like that's actually what President Trump suggested they want. It seems like he's indicating they have an arrangement with Vice President Delcy Rodriguez where they're going to be able to make some demands, direct how certain things happen around oil and presumably drugs.
But otherwise, that regime, which is basically the Maduro regime sans Maduro, is going to be managing day-to-day affairs. Notably, that's really complicated because the United States has since 2019 recognized the 2015 National Assembly - the opposition movement - as the legitimate government of Venezuela, and that opposition movement controls Venezuelan assets in the United States, among other incidents of statehood. So it's not clear to me how exactly they're going to reconcile these two positions.
KELLY: Are - have you been looking for applicable historical precedent that might be instructive here?
ANDERSON: There certainly are historical precedents that are vaguely useful. You know, Panama is the one that's cited most frequently. In that case, you did have a government-in-exile that had been ousted by Noriega that the then-George H.W. Bush administration helped reinstate. But that's not clear that's what's happening here. Instead, they appear to be - have simply removed the head of state and are trying to create their own alternative regime or keep that regime in place but as a much more pliant client state. I don't know what a good parallel of that is off the top of my head. We'll have to wait and see what path they take.
KELLY: Indeed. One more question before I let you go, Mr. Anderson, and that is, given all the questions about is this legal, is it not, could U.S. officials themselves one day face accountability under international law for an attack like this?
ANDERSON: It's not entirely beyond the realm of possibility. There are huge obstacles to that, primarily political ones. The United States has historically pushed back very strongly against any idea that service members or officials can face international accountability. There's also international immunity, official immunity questions in that regard. But we've seen those been overcome in prior contexts, like the Pinochet context, and so it's not impossible. These are acts that many states are going to look at and are going to say these seem like human rights violations, maybe even crimes against humanity. And those are pretty severe violations that there are going to be calls for accountability for potentially for decades.
KELLY: Scott Anderson of the Brookings Institution, thank you very much.
ANDERSON: Thank you. Transcript provided by NPR, Copyright NPR.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
