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- [00:00]
A
Before we had AT&T business wireless coverage, our delivery GPS wasn't the most reliable. Once our driver had to do a 14 point turn to get back on route. A 14 point turn. An influencer even livestreamed the whole thing. Not good for business. Now with AT&T business wireless routes are updating on the fly and deliveries are on time. And the influencer did get us 53 new followers though. AT&T business Wireless connecting changes everything. Molly, I feel like you and I can sympathize in that we are, you know, people with really common names. Which is why I invited the wrong Molly R initially to this rat tech recording. Apologies. If it makes you feel any better, I am like only the seventh or eighth notable. Scott Anderson, who even works on the same stuff that I work on, like Middle east, national security stuff, which is why I throw that middle initial everywhere. Maybe we just need to start putting your middle initial right in the middle of the Molly R to keep it. So you can be Molly Sr. Or something like that.
- [01:01]
B
It would be Molly lr, But I really haven't had much of a problem before now with the Molly confusion when I run into other mollies. They're usually not humans, they're usually dogs. I think it's a more common dog name than a human name. I took a quiz based on data at some point where I wrote in Molly and it said this is a dog name, not a human name. So, oh, no, I'm a human. I swear.
- [01:27]
C
I have had the weird experience over the course of my lifetime of having an uncommon name that became a super common name. I didn't know other Benjamins when I was a child, and then now everybody seems to be named Ben. And so I sort of feel like I don't know if I was the thin edge of a wedge, you know, or if everybody got named after me or what, but I. I sort of feel like I went from having an unusual name to having a really ordinary name, and I don't like it.
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A
It's like the great Ben Franklin.
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D
I think you should just assume that they're all named after you. I think that's in honor of Benjamin Wittes.
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C
That's the logical conclusion.
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A
I never met a dog named Benjamin. I think I'd like to, but I don't like dog names that are people named.
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C
Well, of course, of course. Wait a minute. There's a famous movie of a golden retriever named Benji, but no one calls.
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A
No, his name wasn't Benjamin. I don't think. I don't think it was I don't think he was just referring to him by the short form, but the thing.
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C
Is to bind my experience to Molly's. When people wanted to make fun of me as a kid, they would always call me Benji because Benji is a dog. So it's very similar in that regard to Molly's experience.
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B
Well, the best dog names that are human names are the ones that you can't shorten to anything that's plausibly a dog name. There's a dog in my neighborhood named Clark that just seems.
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A
I like that.
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B
Exactly. Totally human. You can't make that doggy.
- [02:58]
A
I always appreciate it when I see it, but I very uncomfortable screaming human names the way I scream at my dog to be like, you know, hey, you know, Florence, stop eating your own shit. Something like that would be a little bit much. Hello everyone, and welcome back to Rational Security, the podcast. We invite you to join members of the lawfare team as we try to make sense of the week's biggest national security news stories. It is a new year. We are back from the holidays, and the national security news did not wait for us. It has been a crazy couple of weeks, to say the very least, with one particular development happening at the very end of the holiday weekend popping up of particular note, that is, of course, the US decision to intervene in Venezuela to capture Venezuelan dictator Nicolas Maduro, bring him to the United States for prosecution and assert control over Venezuela, at least to. Although we're waiting to see exactly what that looks like from the Trump administration, as we have done before with some of these big developments. When they happen, national security space. We're going to commit this whole episode to the Venezuela intervention and where it likely may lead. And I'm thrilled to be joined by three of my lawfare colleagues to talk it over with us. First, the man who needs no introduction, but I will do it anyway. We are joined by lawfare Editor in Chief and co host Meredith Benjamin Wittes. Ben, thank you for coming back on the podcast.
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C
Cheers. Happy to do it.
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A
Thrilled to have you as always, especially for these deep, deep dive episodes, which I think you and I are the two people who have been on every one so far. So we can keep that trend going alive as long as we can, although hopefully we don't have too many opportunities to do these things.
- [04:33]
C
I gotta say, I did not see this one coming.
- [04:36]
A
Me neither. But now I'm fully expecting a Greenland cast by the end of the year, so just wait for it.
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C
Part of me woke up Saturday saying, think we're invading Venezuela today, but just temporarily.
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A
That's how I wake up every Saturday. But it's usually like in a cold sweat. But then one day, turns out I was right. Who knew? Joining us as well is LawFair's executive editor, Natalie Orpet, back on the podcast. Natalie, thank you for joining us.
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D
Thank you for having me.
- [05:03]
A
And thrilled to be joining for her third, fourth, fifth appearance. Now becoming a straight up regular is the other Molly R, if you will. Molly Roberts, Lawfare Senior Editor. Molly, thank you for coming back on the podcast. Thrilled to have you here as well.
- [05:15]
B
Thank you. It's third, I think, but we can.
- [05:17]
C
Pretend as Nietzsche wrote about Molly Roberts, she is human, all too human. Not even a trace of canine.
- [05:27]
B
I will cite that next time I run into the problem.
- [05:30]
A
There we go. There we go. Well, let us get to our topics. We are going to tackle three different aspects of the Venezuela intervention and its aftermath today. Topic 1 A hop, skip and a jump across the Rubicon. This past weekend, President Trump took the step he had been threatening for months. He deployed special operations personnel to capture Venezuelan dictator Nicolas Maduro and bring him to the United States for criminal prosecution, removing him from power. The target operation was only hours long, resulted in no American fatalities, though more than 70 people, possibly much more in Venezuela, were reportedly killed. The Trump administration has described this as a law enforcement operation and indicated it is not at war with Venezuela. But is that the case? What was this exactly? And where did Trump get the authority to do it? Topic 2 A truly extraordinary rendition. By Monday, Maduro and his wife, who was captured alongside him, were in New York being arraigned on an array of drug and weapons related conspiracy charges in federal court. But prosecuting a head of state, albeit one not recognized by the United States, presents certain unique challenges. How should we expect the criminal case to proceed? Running in place, President Trump has asserted that he and his advisors are now going to, quote, unquote, run Venezuela. But he's left Maduro's deputy, Delsey Rodriguez, in place in lieu of the opposition movement that the United States and many other countries have long recognized as Venezuela's legitimate government. Trump and his visors seem intent on dictating terms to Venezuela, using the leverage provided to them by the ongoing quarantine of Venezuela's oil, as well as potentially the threat of additional military action. But can this light touch strategy actually succeed? And what issues does it raise? So our first topic is something extraordinary. As you alluded, Ben, this military operation that took place this past weekend is something I did not think was going to happen. I think I said this on this podcast, although I will say the way it happened is the way I thought it would happen, more or less, if the Trump administration was going to do it. But I didn't say that in advance, so I have no credibility making that assertion now after the fact.
- [07:25]
D
That shouldn't stop you, Scott.
- [07:27]
A
It never has and it never will. Honestly, not on this podcast. The Trump administration's decision to do this, what is a very targeted operation in Venezuela. This is a big departure from the big press that everyone cites, the 1989, 1990 intervention in Panama, which there, the George H.W. bush administration sent tens of thousands of U.S. troops, I think it was between 20 and 30,000 U.S. troops to Panama for about a month and a half, essentially spanning December and January 89 and 1990, removed Noriega from power, did effectively kind of occupy big chunks of the country until the government in exile was able to come back in. That's not what's happening here. This was a two to three hour long US Military operation that's now over. And now the Trump administration is essentially again trying to dictate terms to the government that it's leaving in place, essentially the Maduro regime, sans Maduro. So, Ben, I kind of want to come to you first on this. How do we end up on this kind of strangely shaped military operation? It's very different from what prior regime change efforts have looked like, deliberately so, if you believe the Secretary of Defense. But it has equally, if not more ambitious goals about what the Trump administration is saying this is going to achieve. How do we square those two things? I mean, is this some secret sauce the Trump administration has stumbled upon, or are we perhaps being sold something that's a little different than what the Trump administration is framing it as?
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C
So I think the confused manner in which you're asking the question is exactly right. And is in fact, in a meaningful sense the answer to the question. I think a lot of these questions, there's no evidence that I can see that they were thought through at all. On the one hand, this is being described as a law enforcement operation and the goal appears to have been the capture and removal of Nicolas Maduro and bringing him to New York for trial. There doesn't seem to have been a lot of thought to other than we're not going to do it to what happens to the rest of the regime. Is this about, you know, effectuating a law enforcement thing, or is it about the oil in Venezuela and that has been supposedly stolen from us? Do we even know what terms we are dictating to a regime that, you know, does continue to exist. And then what do we make of the fact that there was a election in which we recognized the win of the other side, that's Juan Guaido, and then we recognized his government during the first Trump administration, and then there was a subsequent election in which the incumbent administration clearly lost. And Trump has said that he is not recognizing the government of the woman who was disallowed to run, but won the Nobel Peace Prize in his stead and whose hand picked deputy in fact did win that election. And so, you know, I think the, the first thing to say is that none of this makes a lot of sense. You know, that's not necessarily the worst vice in the world. The Iraq invasion made a lot of sense and it didn't make it, you know, the coherence of the theory of it didn't make it work well. And so I, I'm not sure that if I, if I understood what they were doing, I'm not sure the fact that it was logically a little bit incoherent might not bother me that much. I don't understand what the strategy is. I don't understand other than having Maduro in New York and thereby obtaining leverage and what exactly that leverage means. I also don't understand. There's no more leverage over the regime today than there was over the regime when Maduro was there. We still have a whole lot of ships that are there that are capable of doing a lot of violence. We have a whole lot of economic sanctions and a blockade. We had that before. What exactly is, other than the demonstration project that we can go in and kill a bunch of people and yank the head of state out? What is the leverage that we have today that we didn't have a week ago? I'm not sure I understand the answer to that question. And so I guess what I would say is I am old enough to have been an adult at the time of the Panama invasion, which I thought was a dreadful idea at the time. It worked out really well for a lot of different actors, including people in Panama. And so I am always open to the possibility that the foolhardy, stupid things you stumble into, and by the way, that one was probably less foolhardy and stupid than I understood at the time. But sometimes they do work out well. And so I'm certainly open to the possibility that this could open good things for the people of Venezuela. It is not obvious to me what the mechanism of that is. And I do suspect that if that happens, it won't be because of any planning, or it'll just be because sometimes you wreck bad things and the things that rise up to replace them are better than them. So I think the short answer to your question, Scott, is I don't know.
- [13:29]
A
Well, so we got an interesting report in the days after this operation which kind of laid out the process and impetus, at least according to the New York Times, which I think broke the story, if I recall correctly, that led to this decision to ultimately undergo this operation, which the Defense Department's been preparing for as a contingency for a long time. But at some point two weeks ago or so, supposedly the Trump administration had made several offers to Maduro to essentially go into what the article described as a gilded exile into Turkey, where he would be allowed to retire and take all his wealth with him and lead a nice life, but would have to leave power. He declined to do so, made a bunch of public appearances kind of dancing in the streets of Caracas in a way that the Trump administration viewed as kind of rubbing their nose in his resistance of their demands and threats of military force, and that that ultimately is what drove them to take this step. Natalie, what do you make of that? If we take that to be true, although if you don't believe it, that's totally reasonable, how do we make sense of that decision making process? Does that tell us something about why they shaped this operation the way they did and where it might lead, what they're trying to get out of it?
- [14:38]
D
I think I wonder whether this is a reflection of a phenomenon we've seen in a lot of the administration's decision making, which is that there are a variety of actors within the administration that have different interests and are pushing for things that happen to at some point coalesce around an action that everyone agrees with, but for totally different reasons. So in this case, it seems clear that, you know, along the lines of the story that you're talking about, there are actors within the administration that have been interested in deposing Maduro for a variety of reasons, perhaps most notably for oil interests, but perhaps also in some cases for concerns about, you know, as you've written, Scott, you know, general sort of great power, competition, sphere of influence purposes, allegedly, as the administration is saying, because of drug trafficking, perhaps for immigration purposes, to try to create some stability. You know, maybe there's a voice for each of those equities. But there's also a criminal indictment of Maduro that dates back to 2020. And so it's it's quite plausible to me that there are actors within DOJ who are not thinking about these regional concerns or the foreign policy implications or even the national security implications, but are thinking about the fact that there is a criminal, you know, a purported criminal defendant who they would like to get their hands on. And if you look at the indictment itself, it does not give the impression that it was slapped together at the last minute as a pretext for what is otherwise a foreign policy goal. It does seem like a genuine effort to try and convict an alleged criminal. So I just don't know whether we should analyze it or even try to look for a cohesive theory out of what happened as much as a convenient confluence of people who wanted to take action against Maduro for wildly different reasons.
- [16:46]
B
Right. I mean, I guess you could look at it the other way around. From what you just said, Natalie, you were saying the indictment doesn't read like it's a pretext for military action. You could say that in some ways it was convenient, helpful that there was this serious indictment for people who wanted to go and invade Venezuela.
- [17:05]
A
Yeah. You know, it's interesting to figure out how these different pieces fit together, because I will say the thing that really strikes me about this, and this has led to my somewhat unorthodox operating theory about why things end up the way they did, is that this is a fundamentally, actually a very small c. Conservative operation step. Right. The Trump administration, look at the Panama precedent and other precedents, could have done something much more ambitious. Instead, the amount of skin it's willing to put in the game, the risk here is pretty constrained. It's a snatch and grab that involved serious risks, but real risk to US Personnel, notably, they took pretty aggressive preemptive defensive actions in defense of this personnel. I mean, they hit targets all over the country. That's why they killed, you know, 70 to 80 people at least on the ground in Venezuela. Again, I think that suggests they're really trying to hedge their risks on this. So, you know, the boldness and audacity, the way Pete Hegseth described this move, I actually think is like really kind of overstating it in a way. This seemed like the minimal thing the Trump administration could do while still accomplishing what had become its publicly stated goal of removing Maduro from power. So I don't know where that leads us exactly, because if they're not willing to really commit more at the front end of resolving this problem, and the only thing that's really guarantees them is that symbolic victory, we don't know. And frankly, there's good reasons to doubt that just leaving Maduro regime in Sans Maduro is going to solve a lot of the problems the Maduro regime caused. Most of the problems were not the result of Nicolas Maduro, the charismatic leader. It's because he was the kind of bureaucratic official at the top of a broader enterprise, most of which is still in place. I'm just. And it all now succeeds on this contingent of this threat saying we are going to go ahead and do more of this potentially if you don't cooperate with us. I'm not sure how credible that threat should be taken. Or these threats against Greenland, Colombia, all these other places the Trump administration is putting forward on the basis of this. Because this really isn't the sort of like major military action the Trump administration could have undertaken and would have undertaken if it had more ambitious goals. I don't think, although maybe I'm wrong, maybe I'm being too pessimist about that. Do any of you have views on that? Am I being too dubious about the tolerance for risk of the Trump administration?
- [19:23]
C
I mean, I think the question boils down to whether one sees it in a taco framework. That is, if it's really important, Trump will back down. He's actually not going to blow up the European relationship on purpose, though he could do it by accident. Or whether you see it more through the lens of the national security strategy, that he is a person who wants regional hegemony, doesn't care at all about our overseas relationships, and actually takes seriously when he says, means it, when he says things like we, we need to take the oil or we need Greenland for our national security, whatever that means. Or, you know, or looks at the continental United States and sees this big thing on top of it called Canada that should be part of it, in his view. Right. And I, I go back and forth, you know, I think he, there's a part of him that really does mean that stuff. He doesn't forget about it. The Greenland thing started as a kind of a joke seven or eight years ago and has become very much not a joke at this point. He's really been willing to blow up U.S. canadian relations in ways that would have been hard to think are, are possible, were possible a year ago. So I don't think, look, I don't think we are about to invade Greenland. And I do think if the threat of that were as pointed as one can kind of make it sound now, you would maybe would have seen something more dramatic in Venezuela than what we saw, which I take to be your point. But I, I gotta say I, if I were in Copenhagen, I would be very alarmed at this point. And I, I don't think there's a, I don't think there's a good argument on the, oh, take it easy. This was just a pin prick, nada. You know, like, like that would not reassure me.
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A
Yeah, fair enough, fair enough.
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D
I mean, I think that the other thing just worth saying here is this is also not happening in a vacuum. Right. So regardless of whether you portray this action as a low risk alternative to what could have been a much broader military operation, which I'm not sure I agree with, but I, that's sort of a tangent to what I want to say. The fact that it happened is instructive to states like Russia and China. And so if either of those states, for example, choose to take similar action on a theory of you did it first, you know, sidebar, that's not really true, but, you know, you just did this too. We're going to have a show of force in our own sphere of influence, theory of where we want to assert ourselves and conduct some sort of action. Scale and degree of operation, tbd, depending on what signal they're trying to send. But you can see a world in which it starts just ratcheting up as a matter of broader foreign policy. And I think that's worth some pause and concern about.
- [23:04]
A
Yeah, I'll say there is one thing that's happening actually more or less as we're recording right now. We're seeing Media reports that U.S. military forces have stopped and boarded a Russian flagged vessel believed to be smuggling or alleged to be engaged in some sort of sanction busting smuggling of Venezuelan oil. You know, running the quarantine that the Trump administration has imposed. That's a pretty notable step because of course, boarding another vessel's flag vessel international waters is something that's really not supposed to happen under the international legal regime that most states operate under. And those maritime rules are things that lots of states value, actually, including China and Russia to some extent, although they have proven willing to violate them in lots of other contexts. So it's really intriguing on that front. Now, look, this was a vessel that was reflagged late in the game. Russia's been inserting authority over it. They supposedly are deploying their own naval assets to own guard it. That, to me, is a real direction where you could see this thing escalate in a weird way. And that could have real repercussions in other corners of the world because you are violating this norm that has such a broad application in lots of other contexts. So there's definitely a risk here. I don't want to frame this saying that there's no risk, but I also am not convinced that all of these risks are a sign that the Trump administration is the mad dog it claims to be. International affairs and its desire to leverage that reputation which you see in Denmark and other places. And I no doubt it will do somewhat successfully because I think all these other countries do have to take into account that real possibility. But I'm just not, I'm not convinced that the evidence is there that they have the tolerance, risk tolerance to do this at a larger scale in a lot of other contexts or frankly, that the institutional opportunities will be there to the same degree down the road in a situation where even Republicans in Congress are raising objections to this and concerns. But we'll have to wait and see on that. Well, let us now shift the conversation to the second aspect of recent developments we need to dig into. That's the question of the prosecution of Nicolas Maduro. So supposed impetus, the motivation, the underlying, potentially claim of legal authority underlying this action that the Trump administration has undertaken. Molly, I want to come to you on this as you and a bunch of our other colleagues have been in a big effort to dig into this prosecution and a piece that will probably go up on Lawfare by the time people are listening to this. I should have noted the other one. I have a piece on use of force, legal questions regarding the operation that is up on law for now or will be momentarily. So folks should check that as well in relation to our prior segment. But Molly, talk to us about what we know. What are the charges against Maduro and how does it seem set to proceed? And what precedence do we have for this pretty extraordinary situation where you have someone who is ahead of state by some measures, although not in the eyes of the United States, at least not since 2019, on trial for criminal charges in a US federal court.
- [25:56]
B
Yeah, so start with the charges, which is probably the most straightforward part. There are four counts. They are narco terrorism, conspiracy, conspiracy, conspiracy to import cocaine, and weapons possession. Two of the counts are related to weapons possession, one is a conspiracy count, one isn't. And as Natalie said, it actually looks like a pretty normal serious indictment. This is in the Southern District of New York and in fact, it supersedes an indictment from 2020 that was fairly similar. So it goes through a whole litany of overt acts that were allegedly in furtherance of these various conspiracies. It's not only Maduro who's named. Of course he has to have co conspirators. So those are his wife, two high ranking Venezuelan officials, and one alleged leader of the Trende Aragua gang. So essentially you read through these acts and some of them are about Maduro in particular. Glaringly, the indictment claims that he arranged for diplomatic passports for drug traffickers. He helped them repatriate drug proceeds using diplomatic cover by allowing them to use certain plane routes. There's one vignette that's pretty striking in which again allegedly after authorities in Paris seized cocaine that was dispatched by Venezuelan officials on a commercial flight to the Charles de Gaulle airport, Maduro told some high ranking officials that was dumb. You should use other, better routes and locations to do this drug trafficking. And then he orchestrated a cover up. And then there are a bunch more overt acts that his co conspirators are accused of being involved in. Those are accepting bribes to broker meetings with these cartels, many of which are designated foreign terrorist organizations, which is crucial to the narco terrorism count. In the prosecution, they're arranging for the protection of drugs in transit by armed gangs carrying automatic machine guns. That goes to the weapons count and so on and so on. And the idea is that these drugs eventually made it to the United States, including via Miami and New York. And that's why this is the case for the United States. So that's the basics of the indictment. But as you mentioned, there are a whole host of legal challenges that Maduro could raise. One of them, you noted, is head of state immunity, and we can talk about that more. Another one is official acts immunity. So even if he doesn't get head of state immunity, are the particular acts that he did, is he immune from liability for them because he did them in his capacity, his political capacity, his official capacity? And then there are also the questions of the illegality of his arrest and transfer, although there's a lot of precedent there that suggests that it doesn't really matter how you came to court. Once you're in court, they can try you. So that's sort of the short version. We could dive into any of those. But I should probably stop rambling for now.
- [29:05]
A
Yeah, let's, let's talk about some of these legal challenges and barriers. And before we get to the immunity stuff, let's talk a little about the nature of this transfer, which is kind of interesting. This is a practice the United States has engaged in a number of times over the last few decades, sometimes called irregular rendition, where you see U.S. agents, whether law enforcement agent, this case, military it's been both in the past, forcibly abduct someone from overseas, bring them to the United States and then subject them to criminal trial here. So there is legal rules around this that permit this to happen. And I'm kind of curious where we think this might fit into Maduro's trial, whether this is a just a settled letter, settled rule, or whether there might be some angle of this that might cause some legal problems. Natalie, do you have thoughts on this? I know you've been looking into this a little bit with some of our colleagues.
- [29:57]
D
Yeah, I mean, there are a lot of questions here. There have been instances, as you note, where similar looking things have happened, but this is not a settled area of law, except to olc, which believes that the President has the authority to do anything, including use the military to effectuate arrests for criminal law enforcement purposes overseas. But that's not really established in the case law in a decisive way. And many of the examples of where this has happened in the past, I think Maduro will argue, are distinguishable on the grounds that there was not an existing military operation, there was not an existing military presence or armed conflict underway that was, would have the presence of the military there in a different context. And many of these cases where someone has been captured by the military and eventually brought to the United States for criminal trial have first involved the military or IC interrogating those people for intelligence purposes under a sort of law of war framework before then transferring them for criminal trial. And that doesn't seem to be what happened here. We don't have any. There's no reporting that I've seen that suggests that Meduro was interrogated or sort of kept for military purposes for any length of time before he was transferred to the United States. And they got him there very quickly, as we know. But in this case, the rationale that the government seems to be offering is that the use of the military in the extraction of Maduro was as a matter of the protective power, which is a legal theory by which the President can use the military to support law enforcement operations. And somewhat ironically, this is the theory under which the President is deploying military to, for example, support ICE operations in immigration enforcement in various American cities. So there are cases, there is case law. I will confess that over the past two days we have not read each and every case that has raised this, this issue. But that's in part because they're, they're very complicated and they have long procedural routes. But it does seem like there are grounds for distinguishing the extraction and transfer of Maduro and that his prosecution may be more at risk because of that treatment. There's also some evidence. I mean, first of all, the some of the main cases are not binding precedent on the Southern District of New York. There is a doctrine called the cur Frisbee doctrine that, as Molly suggested, essentially seems to say that no matter how you got to court, it's not really the concern of the judiciary. There is not a due process violation sufficient to affect your criminal prosecution if it happened basically between your arrest and your arrival in court. But it does seem like there's some case law that chips away at that a little bit and that none of it is Supreme Court precedent. So we'll see where it goes. But some of the theory, for example, in one of the cases that we read is that since those cases were decided, one of the Kerr cases from the late 1800s, the Frisbee case, is from the 50s, I believe, and those are the two cases that are referenced in the doctrine. There is a case in which the judge suggests that the Supreme Court's understanding of due process has actually expanded with respect to the due process rights of individuals who are the subjects of extraterritorial criminal prosecution. So there's a lot. I guess the bottom line is that there are cases that look very bad for Maduro's ability to argue that the way in which he was captured and brought to the United States should affect the viability of the charges against him. But I think it is an overstatement to say that any such claims are decisively barred. And I think regardless, it's going to be litigated. Right. If you're Maduro's defense counsel, you are raising these things. You are doing everything you can to distinguish from precedent that doesn't work for you. And I think there are a lot of things that they will try to raise and we'll see how the court receives it and we'll see what the government chooses to use as its strategy for pushing back on it, because it does, as we've discussed in the previous segment, have other equities at stake, though it may not care about the coherence of its arguments in court versus on the global stage.
- [35:03]
A
How about you, Ben? I mean, I will admit my reading of the case law is fairly skeptical of any real effort to contest the capture of Maduro, although there is this little hook, the Toscanino line of case in the Second Circuit where they're bringing this, which opens the doors for some claims about Fourth Amendment human rights violations. I have to go back and refresh myself exactly how they intersect, but I know it's a little bit of a carve out to the Kerr Frisbee doctrine, although that's even been narrowed a fair amount by subsequent case laws. I recall, I think specifically in the context of the ODA prosecution in 2008, which I think was, if I recall correctly, was none of the Nairobi bombers. But regardless, what do you think about this, Ben? Do you have views on this particular issue?
- [35:43]
C
So I have not studied the specific question of kidnapping de facto or de jure heads of state to bring them to criminal trial in.
- [35:56]
A
It's a booming area of law, Ben.
- [35:58]
C
It is a booming area of law. I will say, you know, the, the general proposition that you can render people from intelligence or military custody to the criminal justice system is an unremarkable proposition at this point, whether you're, you know, Ramzi Youssef or any number of counterterrorism suspects or General Noriega. And the fact that the, that there may have been some grotesque abuses in the context of those kidnappings does not actually much impede the prosecution. As a general matter, I will say that the cases that are closest to this one, which is to say Noriega, I don't think there are any other heads of state, even arguable, and I don't know that there are other ones in which the United States sort of invaded the country for the purpose of, of effectuating a warrant. Right. So you've got some unusual arguments here. The Noriega case, as I recall, is all 11th Circuit law, which does not bind the 2nd Circuit. And so I think you could imagine a case in which the Second Circuit revisits some of that stuff as an original matter and you end up with a circuit split that the Supreme Court would have to resolve. I do think if the Supreme Court had to resolve that stuff, the likelihood that it would 30 plus years later say that Noriego was all wrongly decided and that you can't do that is vanishingly unlikely. So I agree with Natalie that there's stuff to litigate here. But ultimately, I also agree with Scott that it's not going to go Mr. Maduro's way.
- [37:59]
D
I will say really quickly that I think, I agree that it is unlikely that if this gets to the Supreme Court, they will decide that Noriega was wrongly decided. But I do think there is some room for a limiting principle to be put on Noriega in the sense that there are aspects of the Maduro case that are sufficiently distinct that we shouldn't understand Noriega the 11th Circuit Noriega decision to be broad enough to cover what happened to Medora.
- [38:31]
B
I think that's right. The Toscanino case that you mentioned as well. My understanding, and you can correct me if I'm wrong, Natalie, is that the idea is basically that if the conduct surrounding the kidnapping or capture of a defendant was so grotesque or shocking to the conscience, the overall care Frisbee rule could be overcome. But then the Second Circuit made clear that that was pretty narrow and that really it was referring to things like torture, which obviously in this case didn't occur. But there could be rethinking. There could be.
- [39:03]
D
Did it obviously not occur?
- [39:05]
C
We have no evidence at this time that it took place.
- [39:07]
B
No evidence at this time, Yes. I shouldn't get ahead of myself, but, you know, even in the Noriega case, they blasted rock music outside the Holy See, where he was taking refuge. And that is. Comes a little closer to something that.
- [39:20]
C
Looks like, especially to the poor priests who manned that embassy, you know, like it was like collateral. Collateral torture.
- [39:30]
B
Yes. Maybe they would have found more sympathy if they'd been lodging the challenge. But in any case, so. So it would take a rethinking here to say that the totality of the circumstances were shocking to the conscience in a different way to create an exception to Kaerfa's being otherwise. I think there are various ways to distinguish Noriega from Maduro, one of them being when we're talking about head of state. It was very clear that Noriega, the United States could say he was never plausibly the head of state. He was a military dictator who conducted a coup. Whereas at least Maduro did win this one election. And, you know, Trump did tweet after the operation calling him President Maduro, which I think was a bit of an error on his part. I don't imagine it would make a huge difference. But, you know, I can see them arguing that Maduro was more plausibly ahead of state. And then for the official acts, immunity, the court in Noriega said drug trafficking, there's. That's just. There's no way that that's an official act. Fair enough. In the Noriega case, if we're talking about specific charges, acts, counts. If you look at the diplomatic passports, for instance, I guess you could say that that was an official act. It certainly function by which he's able to issue those diplomatic passports. I think he wasn't president at the time. I think that was in his previous role. But in any case, I think there are Various kind of narrow ways in which distinctions can be made.
- [40:56]
C
Yeah.
- [40:57]
A
And this all leads me to like actually a kind of fundamental strategy question, which is why did they bring these charges in the Southern District of New York? Because if you know you're going to need the Ker Frisbee doctrine, like all these irregular rendition cases, rely on this. The Second Circuit's the only case that has this Toscanino carve out, which I think is very narrow. Maybe they're just not that worried about it, but it's kind of like a risk you don't have to take because you could have brought these charges a lot of other places, including, I'm quite confident, the Southern District of Florida, which is where you have all the Noriega precedent and where, by the way, you have very cooperative U.S. attorneys. Right. So actually, I don't know about Southern District of Florida generally, but Florida generally, they have a good U.S. attorney crew there that's very friendly to the administration. So I'm a little curious as to why that is. It might just be an artifact of the fact that the original indictment was brought there in 2020 and they just weren't thinking this stuff through, then that probably is it, I'm guessing, but I don't really know. One possibility that occurred to me as a complete recognition nerd, but I'll throw it out there is that there is a question here about particularly if you are getting to immunity questions, although notably, I'd say these immunity questions don't hinge as much on the Foreign Sovereign Immunities act as much as kind of common law principles. And so there's little less in play in the FSIA context, though there is a question as to whether U.S. recognition policy dictates who is a government or a state for purposes of fsia, or whether courts do a de novo analysis of the intended statutory standards, or mostly the international law standards kind of imported to the statute. This has been something that's happened in a number of different courts because the FSIA is perceived as being intended to take the determination of immunity away from the executive branch. So some courts at least have said, well, we should probably do our own de novo analysis and we shouldn't just defer to the executive branch on this like we normally do with recognition. But notably, the 2nd Circuit actually kind of bucking some prior precedent, they had just this earlier this year in a case arising out of the handling of assets, Afghan assets, said we actually do defer exclusively to the President's opinion on recognition policy. It was a two to one decision As I recall, it's just a panel opinion. I believe it's still being evaluated for going up en banc. I have to check whether that's happened or not yet, or been decided on or not yet. So I'm not convinced that's a possibility. But that was the only other legal angle I could think why they would do this. I'm guessing probably the historical momentum point of this hanging over in 2020 probably is the right one. But it's a good question and they may yet regret it if Toscanino resurrect itself and comes back in force, although I find that a little unlikely in this case. Well, while the criminal proceedings go forward in the Southern District of New York, of course, a whole array of other developments are going to be taking place on the ground in Venezuela, and we don't know exactly what that's going to look like. The status quo as it stands and as we're being told by the Trump administration, is that Delsey Rodriguez was Maduro's deputy and is now the interim president, now that he has been removed and is unavailable to fill the role and been sworn into that capacity, is remaining in place. But the Trump administration is not recognizing that regime as the de jure or legitimate government of Venezuela. It's still simply dealing with it as some sort of de facto authority, which has been the status quo since 2019, when the United States and many other countries shifted recognition from Maduro to initially the Juan Guaido interim presidency and then eventually, after Guaido was removed from that role, to the 2015 National assembly, which has been treated as the, quote, unquote, paraphrasing, last legitimate branch of the Venezuelan government. That's the kind of line and where the Biden administration landed on this. And there's no signs that I've seen, and I have been looking for this, that the Trump administration has consciously changed policy since then. In fact, we've had a lot of courts still assuming that this is the case in ruling on things like who gets to determine the litigation position of Pedo Vesa, the Venezuelan state oil company, and things like that in US Courts. So that appears to be the status quo from the recognition perspective now. So there's a clear tension here, as Ben flagged earlier. Right. And then you have this control mechanism you have where I think a lot of people thought when President Trump announced Saturday morning we were going to run Venezuela, that there was an occupation coming, that US Forces were going to deploy on the ground. But they're pretty clearly said that's not Our intention, they said second wave could happen and more military action could happen. But our immediate intent is to impose conditions on Venezuela use. Specifically, Secretary Rubio noted the oil quarantine as leverage over them. Maybe that's an effort to correct for the emphasis on the use of force the president put which would be in violation of international law, even threatening it's a violation of international law. For the record, I don't know exactly. But the whole idea is that we are basically going to be able to exercise so much leverage to control this Delsey Rodriguez regime to get what we want out of them and that if that doesn't work, then we'll come in with maybe a second wave of military forces. Although again, only President Trump has really talked about that at length. Everybody else has tried to play down that possibility.
- [45:53]
C
And just to be clear, what we want is not really articulated.
- [45:58]
A
Correct. So what we want so far seems to be, weirdly, oil. It appears to be entirely focused on the fact that there are legitimate international legal complaints by U.S. companies that Venezuela in 2007 or so expropriated their property in Venezuela. The Venezuelan government and companies have been seeking compensation for that since then. But notably that is not something that can actually justify the use of military force. Like very clearly under the UN Charter. The UN Charter only allows self defense claims, not expropriation claims to be a basis for using military force without UN Security Council authorization. So I think they must be making a self defense argument. And the only thing clearly there is the same narcotics based argument we see in the context of the maritime strikes, which makes sense to bring over because Trinidua is always said to be an agent of Maduro. But if that's the case, it's weird that they're not talking about narcotics as any of these conditions. Right. They don't seem to be drawing a line saying, hey, you need to stop whatever cooperation was doing with Trendaragua. So I'd like to come to you first on this, Natalie. Like what do you make of this? How likely is it to succeed? And can we gather something about what the end state the Trump administration wants if its strategy succeeds? What do they want to get out of this? And how does that align with the policy complaints they've been making about Maduro and Venezuela for the past year?
- [47:19]
D
I think I go back to what I was saying earlier, which is that I don't know that it's worth trying to dissect and find a cohesive policy goal that is happening here as much as it is a convenient confluence of Threads that happen to coexist in the person of Nicolas Maduro. I think that the oil interests seem to be very top of mind, at least for some actors. And clearly as you note in the, in the mind of Trump if you're to take stock of what he's been focusing on in public comments of late. The problem with the rhetoric around narcotics and the operations that have been happening in the Caribbean and the Pacific is that that that has been based, they have, they have sort of, although inconsistently put forth a legal theory that this is an act of self defense, as you note, and that the United States is engaged in a non international armed conflict with drug cartels of which trend is one they have in other contexts entirely, namely the Alien Enemies act litigation that pointed to trend as an invading force that justified the rapid and lacking due process deportation of Venezuelans, said that Maduro is connected to trend Aragua. But the operation in Venezuela and particularly the discussion of the United States, you know, quote unquote running Venezuela now that Maduro is not there anymore really has nothing to do with, with the rationale for the boat strikes, the rationale for just how narcotics has entered into other legal contexts or other legal arguments in different contexts. So I don't know the extent to which the plan for post Maduro Venezuela is even meant to be reflective of the theory for engaging in any of these other operations. You know, if you're being charitable, you could. Well, it doesn't really matter. If there were legitimate legal rationales for engaging in these actions and operations as a military matter or as a law of war matter, then the question of what happens to Venezuela now that there is a potential power vacuum when the head of the state has departed under forcible conditions, that the question of what happens next is really just a political matter, it's really just a matter of foreign policy and strategy. And you know, whether that is a reasonable way of thinking about this question I will leave to others to interpret.
- [50:15]
B
As far as what they want. Specifically. The reporting I read in Politico, I believe is that US officials have told Rodriguez they want her to crack down on drug flows, kick out Iranian, Cuban and operatives of other hostile countries or networks and stop the sale of oil to adversaries. So those are the three big things. Oh, and eventually facilitate free and fair elections and step aside but flexible timeline for that. No imminent elections. So that seems like concretely what they've at least said they're asking for. Trump specifically has been talking a lot, a lot, a lot about the oil. The oil seems to be the big thing for him. And even in the initial press conference address he gave, he was saying basically in a very Trumpian fashion that they're doing the oil business all wrong and we're gonna fix the oil business. So that really seemed to me to be what was at the heart of it for him. But of course, as you mentioned earlier, Natalie, there are so many other actors in the administration who have other interests.
- [51:21]
C
One important point here is how different this is from, you know, what we would think of as kind of neocon regime change. Right. So if you imagine this being done by some hybrid of Paul Wolfowitz, Dick Cheney figure there would be a kind of a front loading of the this is an illegitimate regime that we want to have elections. We want. Right. They would sound a lot like liberal internationalists and with a comfort level with the use of military force for the accomplishment of things. And they would be embarrassed by talking about oil. Dick Cheney didn't used to like it when people would say no blood for oil. And it was important to the Bush administration during the Iraq escapade that, you know, they had a common vocabulary with people like the Washington Post editorial page where both Molly and I served at different times. This is a very different vocabulary. Right. And so, oh, by the way, free and fair elections is last on the list as almost an afterthought with a flexible timeline. It's clearly the thing they're willing to have fall off the list. The demand is effectively we want our competition out of there and we want our hardest of hard power interests accommodated. Absolutely. In other words, you become our client. It's a real kind of gunboat diplomacy attitude toward, you know, there was a book actually by a former lawfare student contributor named Sean Mirsky about the period of gunboat diplomacy about U.S. foreign policy in Latin America in that period of, you know, up to 1920, 19, 30 or so. And this is really has a lot of echoes of that, that. And it couldn't be more dissonant with the tone of the more recent advocates of regime change in different countries to.
- [53:58]
B
The point you make about Iraq and the contrast with Dick Cheney. Joe Scarborough said that he talked to Trump this weekend and Trump said that the difference between the invasion of Iraq and the current operation was quote, unquote, that Bush, Bush didn't keep the oil and we're going to keep the oil. So, yeah, very upfront about the oil. And opposite, like you said, they're not presenting themselves as liberal internationalists. Stephen Miller also went on CNN and said, we live in a World, the real world that is governed by strength. Kind of his first principles thinking iron laws of the world since the beginning of time. We can do what we want because we're more powerful.
- [54:39]
C
It's the Melian dialogue, theory of international.
- [54:44]
A
Relations, Millerian dialogue, something like that. We'll work on that. We'll workshop this. Millerian, but it's Stephen Miller. So it's Millerian.
- [54:52]
C
Oh, Millerian, very good. I like that. I wish I thought of that for my object lesson.
- [54:56]
A
There you go. You know, this all kind of in my mind ties back to kind of my initial assessment that there's like a small C conservative thing to do. And frankly that's part of the reason why I think think parts of this might kind of succeed is because just isn't that ambitious an agenda in a lot of ways at least the things they really seem to care about. You know, America had huge ambitions when they transitioned formed Iraq. And that's part of the reason frankly why things fell so flat is because their very big ambitions hard to live up to here. A few of these steps, you know, oil concessions, kicking Iranian Cuban operatives out of the country are things that will be painful for Iran, for the Rodriguez regime to do. But they all have the benefit of the United States with a gun to their head and being able to use that as an excuse to say, hey, Iran and Cuba don't get too mad at us, we have to do this right if they're willing to do it. Cracking down drug flows is the one thing that strikes me as the biggest challenge here because again, most of the actual assessments of this stuff are not that Maduro was single handedly the man holding the drug operation together or running it. It's that he was as much a figurehead for a huge whole bunch of other powerful influence that are still there. Running drug trades of various sets and a bunch of other corrupt and problematic activities. Those people are all still there. But then again, those are also the things that it's a much more subjective standard about what it is. Like how is the Trump administration going to measure drug flows? Have they measured drug flows so far? How have they proven that their maritime campaign has been successful or not? We haven't seen a lot of evidence of that. And so it's one of those things where they have a lot of ability to shape the reality about whether they think it's successful or not in their public statements. And then the election bet again, that slides. So given that their ambitions are relatively limited, it kind of fits in with this idea, is that they just want the state to remain exactly as it is, the status quo with just a few small edits. And that's a limited sort of action. It's dramatic, it's big. It potentially has regional consequences, particularly if it all falls apart. But that lack of ambition, the narrow targeted consequences, does make this in some ways like, like a more feasible plan. It still is such a light touch footprint. It just seems like lots of ways for it to fall apart. And then you have to call, see if the Trump administration is bluffing or not. I'm really being willing to go do something much bigger and I think it might be. But we'll find out, or maybe, hopefully we won't. Well, folks, that is all the time we have here today to talk about this very special topic of Venezuela, which I do not think is going away. And we'll have opportunity to revisit in future episodes, if not in such concentrated fashion. But this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come until we are back in your podcatcher. Natalie, what did you bring for us this week?
- [57:37]
D
I have brought a recommendation for a mini documentary, or maybe it's not so many. I'm disclosing that I have not actually finished it yet, but it is of such great delight to me and I am confident I will enjoy the whole thing whenever I finish it. And that is a documentary that was made in honor of the 100th anniversary of the New Yorker. It's on Netflix. I'm completely forgetting the name of it. And the directors, although they are eminent and very talented. And I do deeply apologize to them. I mean, I'm admittedly a total New Yorker fan girl and I have the calendars and I have the tote bag and my husband makes fun of me because I constantly interject into conversation, oh, I read this really interesting thing in the New Yorker.
- [58:22]
A
Such a traitor to Chicago, your native land.
- [58:26]
D
I know, I know.
- [58:26]
A
But where's the Chicagoan magazine? They scream in Chicago, but no, nothing. No introverts.
- [58:31]
D
I know. But I will leave for another day offline the discussion of why the New Yorker has moved far beyond its regional capacity and the fact that my grandparents who lived in Cleveland or Chicago most of their lives were big New Yorker fans. So it's in my blood. Anyway, the documentary is lovely. It's a nice history of the magazine, which also sort of touches on the history of journalism in the United States, but a really nice overview of how the magazine became what it is, which is this really if you think about it, quite weird combination of everything from fiction and humor, which started as a humor magazine, basically, to really hard hitting reporting, like the first journalist to visit Hiroshima after the nuclear bomb there. And the one thing I found, one little tidbit for this crew that I found delightful, is that in one shot, David Remnick, who is the editor in chief of the New Yorker, is working on an article and I saw that he was working on it in Google Docs with an editor working over his shoulder, which is how Lawfare works on articles as well. So I found that quite delightful.
- [59:49]
A
Wonderful. Well, we'll have to check that out. Molly, what did you bring for us for your object lesson this week?
- [59:52]
B
Week, yeah. So speaking of first principles thinking, if you're more powerful, you can do it. President Trump, as Ben has heard me talk about at length, has somewhat lawlessly taken over all of DC's municipal golf courses. So in honor, I don't think honor is the right word of that. And I have it here. I have brought this wooden putter that I bought. It's not mine. It was a gift that I gave for Christmas. But it's very beautiful and I wanted to give a shout out to the woodworker who goes by for his. His shop, Naughty by nature. Ha ha. And he makes a lot of really gorgeous bowls in addition to bespoke putters. I don't think bespoke putters exactly scream public access golf, but there you have it.
- [60:36]
A
I love it. I love it. My. My father is a golfer and I've gotten him every possible conceivable golf related gift, I thought for every holiday when I'm out of gift ideas, and now you've just given me another one. So you may have bought me one more year of reprieve before I have to shift my fire to Ty. So thank you for that. If nothing else, Molly, I'm happy to be of service. Wonderful. For my object lesson this week, I do think I need to bring attention to another big story that if we had not invaded Venezuela, I think we would have been talking about, and that's the fact that this is the fifth anniversary of the January 6th insurrection this past week, yesterday, specifically on the day we're recording, obviously a day that looms large in the national imagination, as it should and should continue to, despite efforts by many people to rewrite what that history means. And I will say the Washington Post, while, you know, its OP editorial pages have had better days, I will say still continues to do very good, useful reporting and very compelling reporting on this there was a phenomenal profile of Nathan Tate, one of the people who was a police officer on January 6th five years ago and has since become a social studies teacher, talking about how he tries to teach the story of January 6th to his students. It is a really, really compelling and tear jerking piece by Ellie Silverman entitled He was attacked on January 6. Can he make sense of it for the kids he teaches? Strongly recommend folks check that out as I think it really drives home the importance of not, not letting the narrative flip on that particularly important chapter of American history. I don't think it will, but it's going to take some effort to make sure it doesn't. Ben, let me bring it to you to bring us home. What do you have for your object lesson? No mulligans.
- [62:09]
C
You've used your one mulligan in the whole history of rational security. I have taken one mulligan, just one, and there will never be another one. I, I also have a January 6th related object lesson. As many listeners of this podcast know, in the wake of January 6, the estimable Natalie Orpet, on behalf of Lawfare, did a two season long narrative podcast about the aftermath of January 6th, which we called, appropriately enough, the Aftermath. And there was this guy in the aftermath named, appropriately enough, Guy Reffit, who was one of our four, the four January 6th perpetrators that we followed, whose case we followed through prosecution and who was ultimately pardoned and freed by one Donald Trump. And yesterday, my co host on my daily livestream show, Dog Shirt TV, wandered down on January 6, 2026, to the mall, the Ellipse, to go to a protest. And she heard that there were a bunch of January Sixers who had also assembled on the Ellipse. And so she wandered over to listen to Enrique Tarrio and to a bunch of January Sixers. And she whipped out her iPhone and started filming. And she found herself confronted with a gentleman who told her that he was a January 6th perpetrator and actually the first guy who had been brought to trial and that his son had turned him into the FBI and that he had spent four years in prison. And this, of course, turned out to be none other than Guy Reffitt, the subject of a lengthy piece on Lawfare by Roger Parloff, one of the figures whose case we tracked in the aftermath. And you can see his conversation with a sometime Lawfare contributor and former former CIA Africa specialist Holly Berkeley Fletcher on today's Dog Shirt tv. It is one of the weirder conversations. You know, Holly wanders down to the ellipse on the five year anniversary of January 6th and finds a quite violent perpetrator who is very happy to have been freed by Donald Trump. I don't know what the moral of that story is, but it seemed to me worthy of an object lesson.
- [65:01]
A
My Absolutely. I am going to check that out possibly as soon as we get off this recording. But for now that brings us to the end of this week's episode, a quick administrative note for regular listeners. This episode, as you may notice, probably have notes is coming out on a Thursday and we are probably shifting release for this show to Thursdays, something we actually meant to do a couple weeks ago but schedules did not align. But that is just due to some changes in mine and other participants schedules. So keep an eye out for this coming out around middays on Thursdays. Moving Forward Forward Rational Security is of course a production of Lawfare, so be sure to visit lawfairmedia.org for our show page for links to past episodes, for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfairmedia.org/support our audio engineer producer this week was Noam Osband of Go Rodeo and our music, as always, was performed by Suiya Yan and we are once again edited by the wonderful Jen Pata. On behalf of my guests Natalie, Molly and Ben, I am Scott R. Anderson and we will talk to you next week. Goodbye.