← The Lawfare Podcast
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- [00:00]
Christy
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- [00:47]
Benjamin Wittes
I talk too much? Can I just let it go?
- [00:56]
Christine
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- [01:23]
Benjamin Wittes
Ben it's the Lawfare Podcast I'm Benjamin Wittes, Editor in Chief of lawfare, with lawfare Senior Editor Scott R. Andersen, Foreign Policy Editor Dana Stuster, and Public Service Fellow Lauren Voss.
- [01:36]
Dana Stuster
The oil thing has come back over and over again and has been a subtext of other statements that they've made. I think more broadly it is one part of this broader national security strategy that they have put forward, this idea that the United States is going to be more assertive in the Western Hemisphere, that is going to reposition assets to the Western Hemisphere and care less about Europe and about the Middle East.
- [01:59]
Benjamin Wittes
In a live recording on January 4, we discussed what we know and what we don't know about the legal issues raised by the US Strike on Venezuela and the capture of Venezuelan leader Nicolas Maduro.
- [02:16]
Scott R. Anderson
There may be legitimate arguments that Venezuela has committed international law violations, but not every international law violation means that you can go use force. The UN Charter tells us the exact opposite.
- [02:28]
Benjamin Wittes
I don't really quite know where to start with this, so let's just start, Dana, with what happened. What do we know? And is the United States running Venezuela now? Is it going to be a 51st state? What do we know about the US military operation in Venezuela and is it over?
- [02:53]
Dana Stuster
We don't know. And so what we do know is that on Friday, the United States carried out a military operation to Seize President of Venezuela Nicolas Maduro. Trump administration has offered conflicting accounts of this in terms of whether it was primarily a law enforcement operation. The Trump administration in a press conference yesterday said that the United States is now running Venezuela and would be the country would be run by US Secretary of Defense and Secretary of State. That was walked back today by the Secretary of State, Marco Rubio, who said that they are engaging with the Vice President, now president of Venezuela, and will be applying pressure to influence Venezuela's policies with new leadership through continued oil sanctions and an oil embargo and likely continued strikes on narcotics vessels and things like continuation of the current policies. But in terms of what is next, the Trump administration did say yesterday that it is talking about continued strikes on Venezuela to continue to exert pressure on the government such that it is and what that might entail and whether that actually will result in some sort of more aggressive effort to shift the regime in Venezuela. They're strongly hinting at that or at least threatening that.
- [04:12]
Benjamin Wittes
I mean, there are regimes that you want to replace because they're engaged in all sorts of malign international activity. There are regimes that you want to replace because they're repressing their own people in horrible ways. What is the stated theory of why we want. I mean, Nicolas Maduro is a bad guy. And I don't think one needs to be romantic about the regime in question. But, you know, there are a lot of bad regimes. What is the argument for pressuring this regime into non existence?
- [04:54]
Dana Stuster
The Trump administration has offered several rationales for this type of operation. There's the law enforcement rationale that Maduro was indicted and so he needs to stand trial. That doesn't explain the timing.
- [05:07]
Benjamin Wittes
And that's a little bit awkward considering that you just pardoned the president of Honduras for similar drug trafficking charges. Right, right.
- [05:18]
Dana Stuster
There's also this development of the Trump administration's rationale that the Snarco trafficking is a terrorist threat and therefore needs to be addressed as a national security threat. But in the press conference yesterday, the Trump administration was very open about the oil interest and that the United States wants to bring U.S. oil companies into Venezuela to redevelop Venezuela's oil production and output. It was shocking to see this stated so baldly that this very sort of colonial throwback to we need to get in and get the oil. But it's also something that the Trump administration has said with regards to, say, Syria and the first administration that we need to go get the oil that the Islamic State has. It's also been, you know, Venezuela's been a bit of a fixation for the Trump administration, even back in the first administration when there was the whole popular movement for Juan Guaido. And so it seems like this has been present in the administration's foreign policy outlook going back to the first administration. It's continued in this current past year, and it found voice in the national security strategy. Lauren wrote about this in Lawfare not long ago, the national security strategy that was put out in November. But the administration is really shifting towards a foreign policy outlook that really seems to see the world in terms of spheres of influence and US Domination of the Western Hemisphere. And they've talked about the Trump corollary or now the Don Row doctrine that says that the United States needs to force out potential rivals and competitors from the Western Hemisphere. And this seems to be part of that as well.
- [06:56]
Benjamin Wittes
All right, because we are lawfare, let's focus on the legal questions. Scott, we have talked a lot about the legal authority for blowing up boats in international waters, less about the legal authority to send ground troops in to kidnap heads of state. I can only think of one time that the United States has done that, and that's in Panama. What do we know about the administration's legal theory behind this operation?
- [07:37]
Scott R. Anderson
So we still only have really snippets that they've offered from diverse officials, sometimes second or third hand through members of Congress relaying statements given to them by the administration. So it's very piecemeal at this point. But I think we can make some educated guesses about how they're likely to justify this based off both past executive branch practice generally and then specifically how they've approached the maritime strikes, which now that they are in their fourth month, we have had a little bit more forthcoming about the legal argument they've settled on for justifying them. After a little bit of confusion early on from an international law perspective, to the extent the administration makes an international law argument, and I suspect they will ultimately, despite their kind of skepticism about international law, they're almost certainly going to invoke a very similar argument to the merit there. They have argued that groups like Trenda Aragua have effectively engaged in an armed attack upon the United States by engaging in narcotics trafficking and certain other criminal behaviors and that that triggers the right to self defense under international law articulated in Article 51 of the UN Charter, and that that allows the United States to respond with military force. It also allows other states that are in a similar situation to respond with military force or to see collective self defense with the United States, meaning asking the United States to exercise self defense on their behalf. We've heard that referenced a few times by the notably though no country has ever come forward and said we've actually asked the United States to do this on our behalf yet. So assuming it's individual self defense, this is a really problematic argument. Nobody's ever really realistically thought about treating narcotics trafficking as the equivalent of throwing a bomb at a country. And there are lots of really problematic reasons for doing that, not least because it completely kicks the doors open on the types of circumstances that can lead to the use of force under international law. The exact opposite of what the UN Charter was intended to accomplish. But nonetheless the it's easy to see how if they've already making that argument for the maritime traffickers, that can extend to Maduro as well because from day one they have said Trenda Aragua, the group they've targeted with the most maritime strikes as far as we know, is essentially an agent of Maduro. And it's not hard to see how that behavior, if they think Trenda Aragua is engaged in armed attacks against the United States, how they can attribute that conduct back to the Maduro regime as a whole. Domestically, it's a slightly different picture the executive branch has maintained since 1989 with some fluctuation. But this administration almost certainly bites the view since 1989 that international law isn't binding on the President at least where it's not in a self executing treaty. So in that regard they don't see charter prohibitions or other international law restrictions as being restrictive on the President under his take care clause obligations. Instead, they're likely to view this pretty straightforwardly under a war powers analysis. Meaning has the President reasonably determined this is in line with US national interests? We may disagree with that, but certainly Venezuela is a problem presents real policy problems that administrations wrestled with. That's not a hard bar for them to cross. The second trickier one here is is the nature, scope and duration of the expected hostilities here rise to a level of a war for constitutional purposes, basically a major armed conflict. And the line the Executive branch usually draws for that is Korea or Vietnam. There's a lot of reasons to think that what the United States did, while a big deal, is unlikely to lead to a Korea or Vietn type conflict and that that means that, well that's within the zone then at least until Congress legislates otherwise, which it hasn't, where the President can do this on his own. So it seems to fit. You can see the Executive branch precedents. They would lean on to say this fits with that sort of mode. Now, I would argue taking out a head of state raises nature, scope, duration, questions of a different nature, even if you don't think it's immediately going to lead to a Korea or Vietnam type conflict. But it's a flexible standard. And this is all law developed by the executive branch. It's never been subjected to judicial tests because courts weigh in on this so rarely. So with all the flexibility built in, it's not hard to see how they could try and piece together an argument, if not entirely persuasive, one to rely on. One thing I'll say that's interesting about this, though, is that they do seem a little more hesitant about ground operations and that does make this threat that President Trump has reiterated. But Secretary Rubio has actually stepped back from a little bit about further on military operations and particularly the occupation of Venezuela. On ABC News this morning, Secretary Rubio, when presented with the question, I think by George Stephanopoulos, if I recall correctly, did you get congressional authorization? If you didn't, why was it not needed? Rubio said, we are not occupying this country. That's why we don't need congressional authorization. This was just a narrowly focused law enforcement operation. And that is, I think, communicating some acknowledgement that a major ground operation could be giving getting issues from a constitutional legal perspective. But we don't know. They may not stick to that views if push comes to shove. We'll have to wait and see.
- [12:14]
Benjamin Wittes
All right, Lauren, help me out here. On the one hand, the president says we're running Venezuela for now, and on the other hand we are getting, you know, the secretary of state says we have no troops there. What do you understand to be going on with respect to the continuity of US Military operations?
- [12:40]
Lauren Voss
Yeah, I mean, I think what the president meant to say was that we will run Venezuela. And it's a question of how that would come into practice. But we talked about this first wave, which has been described as a response to a request for support from doj, Right. To arrest these two individuals. And so the first military wave was supportive law enforcement. What the president is threatening is that second wave if the Venezuelan government that is left does not give in to US Demands. It is unclear what exactly those demands are, but the threat is that we would have a second wave. And it looks like those forces are somewhat ready to go. But it's unclear what that would entail, especially with Secretary Rubio's comments today saying that we're not going to be controlling the territory. So I think what they're hoping for is that the Vice President and the rest of the government that's left, which it doesn't seem like it will, the Vice President's already said she's not going to cooperate. You already have the national assembly passing resolutions saying this is a violation of their sovereignty. But the hope is that these officials will give in to US demands, let us oil companies in, let us in without having to do any more military operations. But it just seems like that's not clear that that's going to happen at this point. What makes it even more complex, as Scott was talking about with the legal justifications, is that first wave of military operations seems to be based on potentially a claim of self defense, but also the fact that they are supporting law enforcement operations. And there's been a lot of conversation around in 1989 OLC opinion about the ability of the military to support law enforcement operations abroad. But if there was a second wave, that would have to be predicated on self defense or some other claim because if it's really going in to seize territory to destroy more military objectives, then it's not about law enforcement anymore. So I think we have more questions than answers right now.
- [14:54]
Benjamin Wittes
Yeah, so I am perplexed by. All right, so when you go in to get Nicolas Maduro, I suppose you have the law enforcement operation argument, but then you say you're running the country and you're using, or if you're Rubio, you say we're not running the country but we have a lot of leverage because we can hit more boats and more targets and there's a second wave available anytime. You can't use the law enforcement authority argument for that. So would that revert to some kind of a self defense argument or does it, is it just a kind of Article 2 so there sort of thing?
- [15:40]
Lauren Voss
Well, so one of the other things that Scott mentioned that's possible is the unilateral use of force by the President under a national interest type claim. This is like the Libya 2010 opinion. Right. And so that could be justified here too. There's a lot of reasons they've talked about national interest in Venezuela, the destabilization of refugees, the drug trade, the economic issues that have caused destabilization in the region. So you could be making that national interest claim too. We haven't seen that, but that is possible. But I think you also fall back on the similar self defense claim that you've seen for the boat strikes. But we, we don't know.
- [16:21]
Scott R. Anderson
Can I jump in on here, Ben? Because, yeah, there's a lot of flak around these legal arguments and a lot of confusion in the media coverage. I think it's really worth drilling in and situating how these things fit into the framework that, as we understand the executive branch in the United States has traditionally applied this right. On the international law perspective, the Trump administration has noted a we have this law enforcement motive that, you know, Maduro has done things in violation of our domestic laws, done things that we have a right to, to prosecute and to enforce to some extent under international implied. They never said that. That's the implication. They've also noted that the Venezuelan government, the Maduro regime in particular and his predecessor at various points expropriated American property and did a bunch of other things against American companies in violation of international law. Those things can may be true, but under international law, since the UN Charter, they cannot justify the use of military force. So there has to be either a self defense argument or just acknowledgement that this is in violation of international law. Under the UN Charter, those sorts of report reprisals, as they were called, were something that would occasionally happen between states, were seen as valid up through the very early 20th century. Around the World War I era, they began to come under international legal doubt. And since the UN Charter, they've very clearly been outlawed. So those things don't matter. On the international law front, there may be legitimate arguments that Venezuela has committed international law violations, but not every international law violation means that you can go use force. The UN Charter tells us the exact opposite. Domestic law perspective, it's the same thing. The law enforcement argument is a bit of a red herring here. Yes, the President has a lot of legal authority to engage in law enforcement constitutionally. Yes, that was reiterated in the Trump immunity decision by the Supreme Court in 2024 in very, very strong terms this administration loves to cite and talk about. But that does not mean it wipes out the constitutional authority of other branches or other constitutional rights. No more that could the administration argue that because it needs to enforce a particular prohibition, it can start regulating foreign commerce or it can start quartering soldiers in people's homes, both of which in clear violation of the Constitution. Can it now argue we can take military force we couldn't pursue otherwise, that because Congress has to authorize it. The law enforcement theory here, I think is primarily a gloss on the argument about what is in the national interest. It's an argument to say we are enabled to do this and we have a strong argument that's in our national interest. But the Only real constraint on the presidency authority, President's authority is, hey, it's, is this a nature, scope and duration issue? And that restriction would still apply to a law enforcement operation if the declare war clause limits what the President can do without congressional authorization. That limit doesn't go away just because the President has inherent, inherent law enforcement authority. I don't think it, nor does if Congress were to impose limits, if those limits were within its constitutional authority to impose, could the President say, I can ignore those things? Maybe the law enforcement pushes back on certain limits they can impose. Maybe there's, there's steps that Congress can't take to limit law enforcement operations that they could take to limit other military operations. But that's deep in the weeds of legal questions no court has ever addressed. So we don't really know the long and short of it here. I think the law enforcement angle of this is actually mostly a distraction from the core legal frameworks as we deal with them or a gloss on the bigger legal questions that really.
- [19:29]
Benjamin Wittes
Yeah, I mean, I think less a distraction from. Than an overspecification of. Right. If you have a law enforcement warrant, you have presumably the national, you know, some great national interest at stake, but the relevant legal fact for purposes of international law is the national interest, not the warrant.
- [19:59]
Dana Stuster
All right.
- [19:59]
Benjamin Wittes
Well, speaking of the warrant, let's talk briefly about the indictment. Scott. This indictment has been sitting around since 2020, I believe. Why doesn't it get nuked by head of state immunity? Why? What, what does, what happens now to Mr. And Mrs. Maduro now that they are in the Brooklyn Detention center?
- [20:34]
Scott R. Anderson
So, yeah, Nicolas Maduro has been indicted since 2020 in the Southern District of New York. This indictment is a superseding indictment that was unveiled at the time of the military operation that kind of expands the claims and basically it lays out a series of conspiracy claims that encompass Maduro, his wife and his son, a senior figure in Trenda Aragua, and a few other people basically alleging them both of engaging in cocaine smuggling, notably not fentanyl, which has been a focus of a lot of the rhetoric and to some extent, legal arguments the administration has put forward with the. Setting that aside for the moment, cocaine smuggling and weapon smuggling, particularly in relation to groups like farc, which is a designated foreign terrorist organization, has been for a long time in the United States and other groups, regional groups, in which they're alleged of engaged in arms trafficking and other sorts of associations. This nexus of charges is really interesting because you're absolutely right. Some of them reflect policy judgments by senior officials that normally would raise pretty serious official immunity questions. But here we're in a unique situation where Maduro has not been recognized as the lawful head of state of Venezuela since 2019. That is when the Trump administration shifted recognition from Maduro to the interim president at the time, Juan Guaido, who was the head of the national assembly elected in 2015. Guaido is since no longer in that role. But the 2015 National assembly still operates and it's still recognized by the United States and a number of other countries as the, quote, unquote, kind of last legitimate institutional of government in Venezuela, and among other things, is essentially allowed to run overseas aspects of the Venezuelan state's conduct, like its control of U.S. assets or control of Penveza, the subsidiary of the state oil company that operates in the United States. So the long and short of it is Maduro, for anything after 2019 probably is not going to have official immunity. And we know this from the Noriega prosecution. That's at least where the Southern District of Florida where he was Prosecuted and the 11th Circuit, which reviewed those decisions, landed. They basically said, we follow the president's recognition policy. Noriega was never recognized as the lawful head of state of Panama and therefore does not receive any immunity for this. My guess is they're going to reach the same conclusion in regard to maduro post2019, if any of this conduct. And this is actually something I want to look more closely at the indictment for, because when I read it initially, I didn't have this in mind. If any of the alleged crimes specifically are hinging on conduct that predates 2019, you'd have a much more serious official immunity problem. But they're conspiracy charges, so allocations of specific facts are probably more likely to go to kind of a material step of the conspiracy. The conspiracies presumably all run past 2019, and that is probably enough if they follow that Southern District of Florida 11th Circuit Logic for the Noriega context to get over those immunity concerns. I want to look at it more closely to reach that conclusion firmly, but that's my strong inclination at this stage.
- [23:26]
Christy
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- [24:12]
Paige
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- [24:46]
Scott R. Anderson
Hey everyone, it's Russell and Christine. So I just found this mobile game everyone's talking about. Royal Match. Gorgeous graphics and super fun puzzles.
- [24:55]
Christine
Bro, you're late. I'm already at level 700. I play it every day on the subway because it doesn't need WI Fi.
- [25:01]
Scott R. Anderson
Wait, what? I've got to catch up.
- [25:03]
Christine
Oh, and they just added new minigames. They make it even more fun and challenging.
- [25:07]
Scott R. Anderson
Alright, show's over.
- [25:08]
Christine
I'm gonna go play download Royal Match on the App Store or Google Play today.
- [25:17]
Benjamin Wittes
All right, so I want to come back to Dana with this question that has been bugging me for, I don't know, weeks now, which is, what is the United States trying to achieve in Venezuela? I look at this and I say, okay, pretty cool operation to get the head of state. We've been really effective at blowing up civilian boats. I wouldn't take a speedboat, you know, out of Caracas these days. But I'm a little bit befuddled by what the policy objective here is. Is it about oil? Is it about of putting in a democratically elected, more friendly regime?
- [26:12]
Dana Stuster
What.
- [26:13]
Benjamin Wittes
What do you understand the policy objective to be?
- [26:16]
Dana Stuster
Yeah, so I think it is in part about the oil. The Trump administration has said it too many times for it not to be distinctly about that. They, they are not saying, and now we are going to put in Carmen Maria Machado or some other opposition. The oil thing has come back over and over again and has been a subtext of other statements that they've made. I think more broadly it is one part of this broader national security strategy that they have put forward, this idea that the United States is going to be more assertive in the Western Hemisphere, that is going to reposition assets to the Western Hemisphere and care less about Europe and about the Middle East. This seems to be part of how the Trump administration has approached China as well, in terms of, you know, the United States is going to challenge China less directly and instead focus on preparing the United, the Western Hemisphere as a sphere of influence for the United States. This involves eroding international norms that the United States has really tried to build up since World War II. Clearly, the Trump administration is not too concerned about the UN Charter. But in terms of sovereignty and legitimation of foreign intervention, the United States is staking out a claim here, saying that the United States is going to protect its interests in the Western Hemisphere and even legitimate business connections between China and, say, Venezuela in this case are going to be at threat if the United States sees it as operating in their backyard. That opens the door to a lot of, you know, things that the United States has criticized, whether it's Russian invasion of Ukraine or concerns about China taking over Taiwan. It's a lot harder for the United States to criticize that sort of action when the United States is so aggressive in the Western Hemisphere and treating it like it a part of its own sovereign territory.
- [28:11]
Benjamin Wittes
Well, and particularly so when the United States does not even pretend that there's a fig leaf of some other interest here. I mean, if you, if you essentially claim the authority to run Venezuela, either directly or by marionette authority because of oil, it's very hard to see what's wrong with China claiming the entire South China Sea up to the nine dash line based on oil.
- [28:48]
Dana Stuster
Right.
- [28:48]
Benjamin Wittes
I mean, or, or any other undersea resources. I mean, it's precisely the kind of, that we don't usually make and we don't usually accept when others make it. Lauren, I want to ask you about the relationship between these Venezuelan operations and the domestic side in the US where we have a whole bunch of people who've been detained and then deported because of alleged affiliations with Trenda Aragua because.
- [29:37]
Lauren Voss
Of.
- [29:40]
Benjamin Wittes
Some of the same threads of legal theories that underlie presumably this operation. And so I'm, I'm curious, is the metastasis of this argument that now extends toward ground invasions of Caracas to kidnap the president of a foreign country? Does that have a domestic side metastasis that you're worried about as well?
- [30:13]
Lauren Voss
Yeah, I mean, I think there's a couple things here, like we've already seen the arrest and expulsion of a number of people for their links to tda. We saw the end of TPS for Venezuelans in country. So we've already seen a number of things on this front. I think what we should be looking at now, though, is if we are actually at war with Venezuela and we say TDA is an arm of the Venezuelan government and TDA is on the ground in America right now, what does that mean for how we could use our military to respond to those people on the ground? Right. And you can make some kind of, you know.
- [30:57]
Benjamin Wittes
And what does it mean? I mean, there are these apartment blocks in Aurora, Colorado. Right. I don't mean to ask you to respond irresponsibly speculate, but irresponsibly speculate for a minute here. What, what do you do with an argument like this if you're thinking robustly about how to use the military domestically?
- [31:23]
Lauren Voss
Yeah. I mean, if we say that we are in an armed conflict with Venezuela and that there are people on the ground here that are agents of the Venezuelan regime, then they are enemies. And it becomes a question of are they enemy combatants? Could you use the military on American streets to not just arrest these individuals, but kill these individuals and that is the way that the path would go. Those arguments haven't been made yet, but I think we do need to be aware that there has been hinting at those types of things, especially like the use of the Alien Enemies act, the use of wanting to use that in the future, that there is a thought that a lot of protections stop at the point that what you are doing on soil is fighting a war and you're acting with military purpose, with military forces, rather than a peacetime scenario. But I mean, I will say we're not there yet, but we should be thinking about those implications because we know that those people are on the ground in the United States, that they're in many cities, they're in many places. And so that is somewhere that we could see this administration going in the future. But I will caveat. I haven't seen those arguments be made yet.
- [32:46]
Benjamin Wittes
Right. Except in the Alien Enemies act case where those arguments have all been made. Right. I suppose accept the idea that you can target people with lethal force, but that you can scoop them up and deport them with, with little or no process required, a Supreme Court decision to contradict.
- [33:08]
Lauren Voss
Right. And you will. And you see the facts starting to change. Now, if we are actually at war with Venezuela, and just to be clear.
- [33:17]
Benjamin Wittes
Are we at war with Venezuela? Because I have, I Can't detect either a strongly positive or strongly negative answer to that in anything the administration has said.
- [33:30]
Lauren Voss
So I think the administration thinks that we're not, at least for domestic law purposes, that we're not in war. I think under international law we clearly could be based on. I mean, we struck a number of things with military force preemptively.
- [33:50]
Benjamin Wittes
We killed 80 people.
- [33:52]
Lauren Voss
Yeah. And in self defense. Yeah. Besides the capital city, the Defense Minister said that there were targets hit in three Venezuelan states around the capital city. So a number of things were attacked. The President said that we destroyed their military capability and knocked all the power out. So I mean, under international law, there's a fair argument that we have taken steps to be in an armed conflict. It seems like some of the Venezuelan government response is the same.
- [34:20]
Benjamin Wittes
And in fact our government's position is that we are in a non international armed conflict with certain non state groups in Venezuela that are tied into the Maduro government. So, Scott, when I asked Lauren whether we were at war with Venezuela, you shook your head decisively. Why does the constellation of facts that she and I have both just laid out don't amount to. At least we're not not at war with Venezuela.
- [34:51]
Scott R. Anderson
So a non international armed conflict. The definition would arise when I wrote about this in a piece with Natalie Orpet, our executive editor a few weeks ago, in the context of the maritime strike requires a prolonged exchange of violence. This violence is almost entirely one sided.
- [35:09]
Lauren Voss
Sure.
- [35:10]
Scott R. Anderson
The United States has killed a lot of Venezuelans.
- [35:13]
Benjamin Wittes
So if they don't fight back, it's.
- [35:15]
Scott R. Anderson
Not an armed conflict.
- [35:16]
Lauren Voss
Yeah. Why can't that be an iac?
- [35:18]
Scott R. Anderson
I think basically you would hope if you're engaging in this, if you're the United States, you better act on the assumption that you are in a NIHAC or an iac, because the alternatives are you're violating human rights treaties and committing crimes against humanity. Right. Is an outside party looking at this going to say, yeah, these people are in international armed conflict or non international armed conflict? I'm less confident of that. I think it's more likely now that you are in a situation where you have a state to state engagement. And presumably some of these Venezuelan forces did shoot back when they were targeted.
- [35:54]
Lauren Voss
General Kaine said that there was a lot of shooting back. Right. And a helicopter was damaged.
- [35:59]
Scott R. Anderson
But again, it is not the case that one state can just attack another state and then that you are bound by the idea that you are asserting you are operating in armed conflict. I don't think that necessarily triggers the state where there's no prolonged sustainment of or continuing hostilities or expectation of hostilities between Venezuela. Is anyone expecting Venezuela to attack Americans? I don't think they are. And let me, before we get to it, too, this all the Alien Enemies Act. There's no reason to think the Alien Enemies Act, a statute enacted by Congress, hinges on the existence of anything under international law as we understand it today. They're interpreting for the intent of Congress. So you're asking for, did the intent of Congress in engaging in this to say the President has decided to bomb a country far away? Does that mean that this rises to the situation where they anticipated? Oh, yeah, now you can start deporting these people. Maybe they will, maybe that does. It won't. I think it probably increases the data point they can put forward to say the executive branch's determination that this is the case warrants deference or is within the zone of deference. But I don't think it's necessarily open and shut either, necessarily. Unless you think really, the President gets really, really broad discretionary deference to determine when we're at war and when we're not.
- [37:16]
Benjamin Wittes
Yeah, I mean, I don't think it's open and shut either. I think it's. I mean, it goes back to this point that Dana made earlier, which is that you're in such a weird environment when the President says, we're running Venezuela now and it's because of the oil. And by the way, it's because of oil that they stole, which they're. There really isn't a history of Venezuela stealing American oil. And so there's, there's a, there's a description. And all of this while we have no troops in Venezuela. Right. And then the secretary of state, who has to clean that up, says, well, we're running things, not directly, but, you know, we're using our leverage, and we could have a second wave of military strikes at any time. And that gives us a lot of leverage. And so you have, on the one hand, the administration really stating an illegitimate basis for an armed conflict, which is, we want to take the oil. You have them then, in addition, claiming what amounts to an occupation for which there is no evidence, and you have them then by way of manufacturing a kind of occupation by marionette strings, you know, asserting a degree of coercion that is, you know, usually you don't quite say, right, either do what we say in running your domestic affairs or we'll do more military strikes. And so when you, when you put all that together, I actually don't know what to make of the environment.
- [39:11]
Scott R. Anderson
It is really beguiling. And look, I think the administration is not entirely unified on a fixed set of talking points. Not least because a lot of our understandings what the administration is doing came from the President yesterday. And the President is possibly the least reliable narrator in the entire executive branch. So he's not good at sticking to his talking points. And I'm not sure everything he said was a talking point that the, that the rest of the officials administration wanted to deliver. This really came into focus I think with Secretary Rubio's interview on ABC News this morning, which I really do recommend folks check out. It's really interesting. Now what did he say? He said in this interview that the President reserved options for ground troops, reserved options for future military strikes. He says because the President always preserves his options, he's never going to go back from this. But he said specifically our leverage over the government comes from the ongoing quarantine of the oil west wealth. That's what we're going to leverage to get them to give us concession to the policy front they want. Now why would he do that? One possible argument is that threatening the use of force to force a policy change on other state is itself a violation of international law. Whether you follow up on or not. You can't just threaten the unlawful use of force to do this one way or the other. I kind of think Rubio sometimes is trying to frame things in a way that makes it easier for European partners and others in the region to say maybe we're okay with this. Which a number of European states have basically said maybe this isn't the worst thing in the world. Or at least they have are having a fairly muted tamp down response because they had lots of issues with Maduro and Venezuela as well. My guess is that at least some people in the administration, most likely Rubio, are trying to draw a line that fits a little more comfortably with that. He also is the one who said look, we are working through the existing regime on the ground. For now, that's who we intend to work with. This is Del C. Rodriguez, the Vice President's regime. We heard a really interesting report that came out in the New York Times this morning that basically said the administration had offered Maduro a quote, unquote gilded exile in Turkey, that he's going to go to live a life of luxury in Turkey. As recently as two weeks ago, man, I would.
- [41:00]
Benjamin Wittes
That's a good deal.
- [41:01]
Scott R. Anderson
I mean now absolutely. I mean depends on what part of Turkey. But Istanbul, absolutely. And I will say you Know, two weeks ago, that offer was on the table, and it was after Maduro made a big, according to this report, made a big public showing of flaunting it. That's when they decided to go forward with this. That does not suggest that this is the product of a big strategic choice. My suspicion is that they want to have the Maduro regime, sands Maduro in place. That is much more pliable because they think they've intimidated it enough and have additional leverage that they can leverage. And now they're trying to frame that sort of status quo in a way that they can sell it a little bit more international. But that does suggest that maybe to some extent, this is a bit of an exit ramp for them, if I'm being honest, not an escalatory step. Because if they were willing to just let things lie, if Maduro left, that suggests that Maduro himself was actually the big sticking point for them. And the only way that makes sense is that if you're a lot more worried about the optics and the fact that you've made removing Maduro your policy priority and your steps you've taken haven't worked yet, because Maduro himself being there or not doesn't really matter that much for what Venezuela does. All the same criminal networks, the military networks, the regime, it's all still there. It can still do the same stuff. So the real question is, if you're so focused on Maduro personally, maybe that's a sign that you're looking for a way to get a victory and then be able to pivot your policy in a different direction. I would not take that off the table. I'm not sure this is necessarily the sign of strength the administration is really trying to project itself as having accomplished.
- [42:33]
Benjamin Wittes
Dana, what do you make of that? Is, is there a Victor Chavez 3 coming in and meet the new Chavez, same as the old Maduro, or is there something important about this guy to this regime?
- [42:54]
Dana Stuster
I mean, something that's been striking in some of the messaging is Hegseth was out there today saying that this is not Iraq. This is actually the opposite of Iraq. And I think that's kind of ties into what Scott is saying, that, you know, the idea is that maybe, you know, we're going to do a regime change without actually redoing regime change. We'll still get the outcome that we want, but we're not going to go in and occupy and destroy the institutions and start from scratch with nation building.
- [43:22]
Benjamin Wittes
Yeah, it's nation not building.
- [43:23]
Dana Stuster
Yeah, exactly. And so, you know, can we still get the policy outcomes that we want, which maybe is de escalation. Maybe it is, you know, an opening for oil investment while still, you know, without having to go through the whole process of occupation and full on regime change and installing the, the opposition that the United States has supported for the better part of a decade now that that seems really feasible. And Scott, to Scott's point about like, is this, you know, an off ramp for and to de escalate with Venezuela? And there's a lot more heat now on the campaign against the boats right now. So maybe this is a way to sort of wind down Venezuela as a, as a political issue before that becomes a source of congressional attention. But think the amount of talking points and the national security strategies, discussion of oil and about, you know, creating greater political influence in Latin and South America suggests that it's a little bit bigger than trying to just de escalate. But again, we don't, I mean, it's so hard to read what the Trump administration wants it's trying to accomplish here.
- [44:40]
Benjamin Wittes
Lauren, assume for a minute that Scott and Dana's hypothesis is correct and that, you know, you, you nabbed your Maduro, he's now safely in the hands of Judge Alvin Hellerstein and nobody except lawfare is going to follow a criminal case closely. You know, a couple of New York Times reporters will be there, I'm sure, but it's not going to be the big deal. And so you're going to use this as an opportunity to de escalate the situation. What does that look like from a deployment point of view over the next few weeks, if, like, if Scott and Dana are right, do we start seeing that giant fleet breaking up a little bit? What would you see that would validate or refute that?
- [45:37]
Lauren Voss
Yeah, well, I mean, you have to think about why the military is there. Right? It is a deterrence measure. It's a threat. So usually the movement of military forces is tied to specific outcomes being achieved. The question here is what that looks like. Is that what's left of the regime inviting in American oil companies? Is that doing something with, you know, cutting some ties with US Adversaries, like all of the reasons that we said we were going in in the first place and the President made a claim that, you know, the, the remaining members of the government had to meet American demands. We don't know what that is. But usually what you would see is as demands are made or progress is made, then you see the deterrence piece go away. So you would see forces start to redeploy, move further out you might see less airborne assets flying, those types of things, but that's usually tied to specific progress and steps. The problem is we don't know what those are. So it's really hard for us to watch and say this is de escalating or not. But you would expect to see, I mean, there's a huge buildup of military force as the president has announced what the largest armada was, whatever he called it. So you would see some of that going to other regions. You would see some redeployment of forces. You would see, like, less of a operational, you know, 247 perspective going on, but that's usually tied to actions, and we don't know what those actions are. So it's really hard to. To map that out.
- [47:15]
Benjamin Wittes
Yeah. I just want to say a good rule of thumb, never call your own navy the armada. That's something you call the other side. All right, Dana, what are you looking forward as you look forward in this? What are you looking for over the next few weeks to tell you what.
- [47:39]
Dana Stuster
So one of the things that Secretary of State Rubio said this morning was that he is not giving much credence to what the vice president, now president of Venezuela, is saying publicly, and that he's going to be looking for actions instead of words. And so clearly there are some sort of conversations that are happening behind the scenes. The US Officials spoke to her apparently around the time or right after the. The operation took place. And so if she does start to make some sort of conciliatory gestures towards the United States, that I think would be really interesting and, you know, might suggest that the US Threats of some sort of second strike are affecting Venezuela's calculus. That's definitely what the Trump administration wants to happen. But I think if Venezuela instead rallies to its partners and tries to create an international outcry and some. Some sort of international response to this, that would clearly pull in the other direction, I'd be concerned about escalation of that point.
- [48:44]
Benjamin Wittes
Scott, I'm going to give you the last word. What are you looking for over the next couple weeks?
- [48:50]
Scott R. Anderson
I think at this point, the big legal questions really shift to what's coming next in Venezuela. We really don't have a sense out from the administration. This administration in this action has created a really weird situation where there are now essentially two different Venezuelan governments that it's engaging with. You have the Rodriguez government in Venezuela that is in de facto control. This is basically the Maduro regime, sans Maduro, that they seem to be leaning on. But you still have the 2015 National Assembly. And the opposite, which involves the opposition, is dominated by the opposition led by Machado and others, who is in control of the really substantial Venezuelan US Assets and not to mention in a lot of other places around the world, still plays a really central role and has been recognized by the United States for many years now. That sort of bifurcation isn't really sustainable in the long run, especially if your goal is to try and get kind of oil concessions. The real question now becomes how do they reconcile those two and what does that tell us about where this is going to go? It also I think is a real indication here about what the toolkits the administration is willing to bring to bear, has available to it to bring to bear. Are, you know, they're not going to position to deploy USAID experts to do, you know, reconstruction or address the humanitarian consequences of military action like this. Those are all capacities this administration has really, really compromised pretty severely. It really has the ability to spiral in a really bad direction a lot of different situations. And again, I read the desire to keep essentially the regime in place sands Maduro as a sign that they really are hoping to just keep the status quo as much as possible and just move it one or two modest steps, one direction or another towards more oil rights and less drugs, and then they can claim a victory and we walk away from it or we, you know, at least downgrade the hugely costly military deployment that's been around this the last six months. So that's what I'm going to look for. I'm going to see what those concessions are. As Dana noted. What are these small steps, what they do in terms of an opposition about an election moving forward? You do have somebody who the United States has previously said was the lawfully elected winner of the 2024 election, who's not Nicolas Maduro. This was Mashado's stand in candidate. What happened to that person who a few months ago you're saying was rightfully elected president, but now you're saying, but we're actually going to give it to Delta Rodriguez to run. There are a lot of incompatibilities, inconsistencies here the Trump administration is doing and how those iron out is going to give us the best sense of what's going to they intend for Venezuela moving forward. And if I'm being honest, I'm not sure they even know yet. So as we watch them figure it out, then maybe we'll get a sense.
- [51:18]
Benjamin Wittes
I tend to think when you have two consecutive officials on two successive days issue roughly comparable statements that are remotely consistent with each other, then you might be able to credit them with a policy. But you got to wait at least till that all right, we are going to leave it there. Lauren Voss Dana Stuster, Scott R. Anderson thank you all for joining us. This podcast is a part of lawfair's Live Stream series, Lawfare Live. Done. Now you can subscribe to Lawfare's YouTube channel to receive an alert the next time we go live. I noticed a bunch of you showed up during the thing. You'd gotten that alert. You would have known when we were going live and you could have watched from the beginning. This podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. This podcast is edited by Goat Rodeo and our audio engineer this episode was, of all people, managing editor Tyler McBrien of Lawfare. Our theme music is performed by Alibi Music and as always, thanks for listening.
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Scott R. Anderson
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