The US Department of Justice (DOJ) on Tuesday released a previously classified memorandum assessing the legality of the Pentagon’s Operation Absolute Resolve, which led to the capture of Venezuelan President Nicolás Maduro. Heavily redacted, it concludes that the president possesses the constitutional authority to order the military operation, which ultimately moved forward on January 3.

Drafted in December by Assistant Attorney General Elliot Gaiser of the DOJ’s Office of Legal Counsel (OLC), the memo relies on the OLC’s historical framework for evaluating presidential use of military force. Under that framework, the analysis considers whether the action serves important national interests, and whether the expected scope of the operation would rise to the level of “war” in a constitutional sense. Using these benchmarks, the memo identifies several considerations supporting the use of military force, including the severity of Maduro’s alleged criminal activity, intelligence assessments regarding weapons caches and associated cartel activity, risks to regional stability, and ongoing humanitarian conditions inside Venezuela.

The analysis puts the anticipated scope of the operation in historical context, comparing it to prior US military actions in Haiti and Kosovo, which were previously viewed as consistent with presidential authority. While the memo concludes that the operation would not constitute “war” under the US constitution, and therefore does not require congressional authorization, it acknowledges that the use of force would qualify as an “armed conflict” under international law. Hence, the operation would remain subject to International Humanitarian Law (IHL) principles, including proportionality of military attacks and the requirement to distinguish between combatants and civilians.

The memo also addresses whether the US government could still prosecute Maduro if the operation was deemed to be in excess of presidential authority. Citing the 1992 Supreme Court case US v. Alvarez-Machain, the memo explains that an unlawful or extraterritorial seizure of a defendant does not inherently deprive US courts of prosecutorial jurisdiction. Alvarez-Machain affirmed the legal principle of “male captus bene detentus,” which states that a defendant who is wrongfully captured may still be lawfully detained and tried.

Lastly, the analysis considers whether US government or military personnel could face legal exposure if the operation was ruled unlawful. It concludes that the “public authority” doctrine likely protects these personnel, as they would be acting within the scope of their assigned duties. However, the memo cautions that the actual limits of these protections are not fully settled.

The memo provides valuable insight into the planning that went into Operation Absolute Resolve, and the DOJ’s publication of this insight comes amidst a developing situation in Venezuela that touches on broad international tensions. United Nations experts jointly condemned the US bombardment of Caracas as an act of aggression and thus a clear breach of the UN Charter, Art. 2(4). On Sunday, Iran’s Supreme Leader Ayatollah Ali Khamenei issued a series of defiant statements warning against potential US military intervention in Iran. Last Friday, Greenland party leaders issued a joint statement asserting that the autonomous territory rejects US calls for acquisition.