US Executive Power Versus International Law in Extraterritorial Arrests

Key Quotes

"so here just to provide an overview this was probably illegal as a matter of international law why the united nations charter makes it illegal for a country to use force in another country's sovereign territory without its consent a self defense rationale or the permission of the u n security council none of which were present none of these are present here this was an arrest operation so probably illegal as a matter of international law as a matter of pure domestic law probably legal the f b i the d e a has the ability to go arrest people who are facing charges it has affirmative authority from congress to do that statutes don't say that that authority stops at the edge of the united states military can provide support to law enforcement in carrying out its authority to arrest people so maybe that's okay on a domestic law level but just to add the final twist there's the question of well what about the fact that the u n charter that makes it illegal as an international law matter is a ratified treaty in the united states and the constitution says ratified treaties are the supreme law of the land right as a matter of domestic constitutional law was this unlawful because trump had a constitutional duty to obey the u n charter and so this is the mess you have to sort through to make sense of this extraordinary operation"

Charlie Savage explains that the legality of the operation to capture Nicolás Maduro is complex because it involves both international and domestic law. Savage argues that the operation was likely illegal under international law due to violations of the UN Charter but potentially legal under domestic law, creating a legal "mess."

"well i don't think very many people think that the 1989 invasion of panama was legal as a matter of international law in the last half hour the united nations general assembly has adopted a resolution deploring the united states' intervention in panama it was declared unlawful overwhelmingly by the united nations general assembly a majority of the u n security council voted to condemn it but the united states of course vetoed that resolution so to the extent that the panama invasion fairly clearly violated international law president george h w bush got away with it there was no one to say you can't do this in any effective way"

Charlie Savage discusses the 1989 invasion of Panama to arrest Manuel Noriega, noting that it was widely considered illegal under international law and condemned by the UN General Assembly. Savage points out that despite this, President George H.W. Bush faced no effective opposition, suggesting that powerful nations can sometimes act in violation of international norms.

"so this is a very long indictment 30 pages this is not a bare bones here's some charges see you in court it's what is sometimes called a speaking indictment where the prosecutors are using this filing to tell a story and it talks about specific acts that have happened the seizure of a cocaine shipment in mexico seizure of one in paris specific conversations maduro and others had it talks about specific bribes that were handed over including to his wife which was something that was added for the second one so we don't know specifically where all of these examples of a conspiracy are coming from but there's a lot of concrete tangible episodes here this is not vague abstract charges and so what that tells you is that they have built over the years a body of evidence that must include cooperating witnesses who will presumably if there is a trial come on for the prosecution and say i saw maduro say this and i saw him was there in the room when he did that"

Charlie Savage describes the superseding indictment against Nicolás Maduro, characterizing it as a "speaking indictment" that tells a detailed story with specific acts and evidence. Savage indicates that the indictment's length and specificity suggest a substantial body of evidence, likely including cooperating witnesses, has been gathered by prosecutors over the years.

"the most important thing that we saw in the noriega case that seems extremely likely to recur here is the question of immunity leaders of countries have something called foreign head of state immunity and this is an ancient part of international law that the sovereign of one country can't be dragged into court detained prosecuted in another country and noriega said hey i was the head of state in panama and eventually a district court judge rejected that claim and an appeals court upheld that ruling and so noriega got lost on it i'm sure maduro and his defense team will raise it again and he's got a stronger case than noriega did why for one thing noriega wasn't really in any politically legitimate way the head of state in panama he was a military officer who had just taken over and essentially a coup and was running things behind the scenes but panama had a constitution that said it was supposed to have a president who was elected and so bush said i don't recognize this guy as the legitimate leader of panama and the panamanian constitution didn't have anything to say about why he could possibly be the head of state"

Charlie Savage highlights that Nicolás Maduro's defense team is likely to raise the issue of foreign head of state immunity, a principle in international law preventing one country's sovereign from being prosecuted in another. Savage contrasts Maduro's situation with Manuel Noriega's, suggesting Maduro may have a stronger claim to immunity because Noriega was seen as a military leader who seized power rather than a legitimately elected head of state.

"i'm sure that if maduro's defense team does what any you would expect any competent defense team to do they will throw everything they can against the wall and some kind of vindictive selective prosecution challenge to the indictment is sitting right there for the reasons we've just discussed i'm very doubtful that will work what is said around a case by a president especially when there's geopolitical implications things that go way beyond law enforcement is i think likely to be found by the court to be just irrelevant to whether or not this indictment of him is based on evidence that he committed these acts but that doesn't mean that it won't be something that a defense raises and that will consume a lot of time and create legal briefs and some headlines along the way"

Charlie Savage anticipates that Maduro's defense will likely challenge the indictment on grounds of vindictive or selective prosecution, particularly given public statements by President Trump. However, Savage expresses doubt about the success of such challenges, believing that presidential remarks with geopolitical implications will likely be deemed irrelevant by the court regarding the indictment's evidentiary basis.