Remember Noriega?

For those old enough to remember, the arrest of Venezuelan strongman Nicolás Maduro this month resembles an event that took place 36 years ago to the date: the arrest of Panamanian strongman Manuel Noriega on January 3, 1990. Noriega had been indicted on drug charges in Florida; the U.S. captured him in Panama in a military operation and transferred him to the U.S. for trial. 

I first encountered the Noriega case as a new lawyer at OLC, shortly after OLC had signed off on the legality of his seizure and transfer (I didn’t work on the opinion itself, which was completed before I arrived). The debate over whether that operation was lawful never really went away—but Noriega’s prosecution did go forward. His case looms large again in the controversy over the U.S.’s seizure of Maduro and Maduro’s subsequent appearance in federal court in Manhattan. 

Some of the legal questions are straightforward. The conduct alleged against Maduro—large-scale narcotics trafficking aimed at U.S. markets—fits comfortably within longstanding principles that allow a state to criminalize foreign conduct intended to have substantial domestic effects. And while sitting heads of state ordinarily enjoy immunity from foreign criminal prosecution, most states, including the U.S., do not recognize Maduro as Venezuela’s legitimate leader. 

In other respects, things get more complicated (if one treats international law as meaningfully constraining). Article 2(4) of the U.N. Charter prohibits the use of force in another state’s territory, so a military operation to snatch a foreign leader looks like a violation of international law. But the U.S. takes a dualist approach to international law. On that view, international and domestic law operate on different—dual—planes. International obligations do not create rights enforceable in U.S. courts unless they are incorporated into U.S. law, for example through treaty language or statute. 

Article 2(4) is almost universally regarded as non-self-executing, so U.S. courts would not treat an alleged breach as a basis to dismiss a criminal prosecution. Indeed, under United States v. Alvarez-Machain (1992), the illegality of a defendant’s capture under international law would not, by itself, defeat U.S. criminal jurisdiction. 

True, there are rule-of-law concerns when a president violates international law, even if U.S. courts would not enforce it. And there are legitimate questions about plunging the U.S. more deeply into Venezuelan politics. But U.S. courts generally—and properly—do not adjudicate those kinds of foreign-policy judgments. They leave them to the political branches, where they belong. 

I have a longer analysis of these issues over at First Things.