By Marcia Sowles<\/p>\n\n\n\n
Starting on September 2, 2025, the United States began a series of 43 military strikes against small boats in Caribbean and the Pacific, killing least 147 individuals.1<\/sup> <\/sup> Then, on January 3, 2026, the United States escalated its military actions in this area by bombing the nation of Venezuela and seizing its president Nicolas Maduro and his wife on drug charge for a trial in the United States. The predawn operation involved more than 150 aircraft at different locations. At least 80 individuals were killed in this action including civilians and an unknown number of others were injured. <\/p>\n\n\n\n Although both actions raise serious constitutional and international law concerns, this article will focus on the legal issues raised by the military action on January 3, 2026. The bombing violated international law regarding the use of force against another nation, the limitations on the Executive Power set forth in the U.S. Constitution and the War Powers Act, and international law on extraterritorial law enforcement. In analyzing these violations, it is important to keep the mind that the issue is not whether there were valid criticisms of Maduro. Admittedly, he was an authoritarian leader who harshly suppressed his opposition. Nor is the issue whether global drug trafficking is a serious concern. It is a serious concern. Instead, the issue is the methods used to resolve those concerns. As recognized in our Annual Statements, the Church of the Brethren opposes all wars and supports use of nonviolent methods to resolve international problems and establish stability. See, e.g., Peace Making: The Challenge of God\u2019s People in History, <\/em>1991 Annual Conference Statement<\/a>. See also Tim McElwee, \u201cJust Law Enforcement: A Brethren Reflection on Venezuela Strikes<\/a>,\u201d Newsline . Such nonviolent methods are not only consistent with our religious beliefs, but such nonviolent methods have a proven track record of success in resolving international conflicts See Robert C. Johansen, Where the Evidence Leads <\/em>(2021). <\/p>\n\n\n\n UN Charter on Prohibition Against the Use of Force Against Another Nation<\/strong> <\/p>\n\n\n\n The U.S. military action taken in Venezuela violates one of the key provisions of the Charter of the United Nations, namely that \u201c[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.\u201d UN Charter, Art. 2(4). The only exceptions to this prohibition against the use of force recognized in the UN Charter are in instances of self-defense against armed attack or with U.N. Security Council authorization.2<\/sup> This prohibition is binding under customary treaty law because both the United States and Venezuela are parties to the Charter.3<\/sup> <\/p>\n\n\n\n The U.S. military action on January 3 is a clear violation of the Article 2(4) prohibition because there was no Security Council authorization or legitimate claim of self-defense. Indeed, in its opinion legally blessing the plans for the military action in Venezuela, the Office of Legal Counsel (\u201cOLC\u201d) of the Department of Justice conceded that \u201cthe proposed operation will constitute <\/em>an armed conflict under international law.\u201d See Memorandum for Legal Advisor, National Security Council 5 (Dec. 23, 2025<\/a>) (hereafter cited as 2025 OLC Opinion). It further admitted that the \u201c[e]xtraordinary rendition from the territory of another State is recognized to be [ ] an exercise of force by the United Nations. Id. <\/em>at 6. <\/p>\n\n\n\n In its opinion, however, the OLC dismissed any legal concerns regarding the violation of the UN Charter by asserting that it did not have to reach \u201ca definitive conclusion about how international law would apply\u201d to the proposed action because the only<\/em> question asked by the National Security Council was \u201cwhether, consistent with domestic law, the President may lawfully order military personnel to assist law enforcement in forcibly removing Maduro from Venezuela to the United States for prosecution.\u201d Id.<\/em> <\/em>at 1, 6-7. In answering that narrow question, the OLC concluded that it did not need to consider Article 2(4) because \u201c[i]nternational law . . . does not restrict the President as a matter of domestic law.\u201d Id. quoting <\/em>Memorandum for William J. Hayes II, General Counsel for the Department of Defense, from Jay S. Bybee Assistant Attorney General, OLC, Re: Legal Constraints to Boarding and Searching Foreign Vessels on the High Seas <\/em>at 18 n. 18 (June 13, 2002) and citing Override International Law in Extraterritorial Law Enforcement Activities, <\/em>13 Op. O.L.C. 163 (1989) (hereafter cited as the 1989 OLC Opinion).4<\/sup> <\/p>\n\n\n\n In its 1989 Opinion, the OLC addressed the question of whether Article 2(4) of the UN Charter prohibited the Federal Bureau of Investigation from making extraterritorial arrests in Panama. (See infra <\/em>at 9 for a discussion on extraterritorial arrests). Notably it did not address the issue here whether federal law enforcement could use the military to \u201cassist\u201d in an extraterritorial arrest, much less whether it could use more than 150 aircraft including fighter jets to \u201cassist\u201d such an arrest as it did on January 3. In that opinion, the OLC concluded that \u201c[t]he text of Article 2(4) does not prohibit extraterritorial law enforcement activities, and we question whether Article 2(4) should be construed as generally addressing these activities. Nevertheless, even if Article 2(4) were considered as prohibiting forcible abductions, we believe that the President has the authority to order such actions in contravention of the Charter.\u201d 1989 OLC Opinion at 164. The OLC reached this conclusion by asserting that Article 2(4) was not a \u201cnon-self-executing\u201d treaty provision and thus \u201cthe decision whether to act consistently with an unexecuted treaty is a political issue rather than a legal one, and unexecuted treaties, like customary international law, are not legally binding on the political branches.\u201d Id. <\/em>It then boldly proclaimed that \u201c[t]he President, acting within the scope of his constitutional or statutory authority, thus retains full authority to determine whether to pursue action abridging the provisions of unexecuted treaties.\u201d Id.<\/em> <\/p>\n\n\n\n The 1989 OLC Opinion finding that the President is not bound by Article 2(4) is incorrect. Article II, Section 3, of the U.S. Constitution provides that \u201cthe president shall take Care that the Laws be faithfully executed.\u201d This clause imposes an obligation on the president to abide by the Laws and not authorize actions inconsistent with the Laws. Under Article 6 of the U.S. Constitution, \u201call Treaties made, or which shall be made, under the Authority of the United States\u201d are part of \u201cthe supreme Law of the Land.\u201d Accordingly, like federal statutes, the President has an obligation to abide by Article 2(4) as well as other treaty provisions. <\/p>\n\n\n\n In reaching its contrary conclusion, the OLC erroneously conflates when a court can enforce a law with whether the law binds the president <\/strong>under the Take Care Clause of Article II of the U.S. Constitution. <\/strong>The doctrine of non-self-executing treaty provisions originates in Foster v. Neilson<\/em>, 27 U.S. (2 Pet.) 253, 314 (1829), where Chief Justice Marshall stated that a treaty provision that is \u201cnon-self-executing\u201d in the sense that it does not \u201cbecome a rule for the Court\u201d to enforce by a private litigant in the absence of implementing legislation. But whether a treaty provision can be enforced by a private litigant is not dispositive as to whether such a treaty provision constitutes a \u201cLaw\u201d for the purposes of the \u201cTake Care Clause.\u201d Although a private litigant may not be able to rely upon a provision in court to obtain relief, it does not follow that the provision is not binding \u201cdomestic law\u201d for other purposes distinct from judicial enforcement, including as law binding the Executive Branch.\u201d See <\/em>Brian Finucane, \u201cPresidential War Powers, the Take Care Clause and Article 2(4) of the UN,\u201d 105 Cornell Law Review 1809, 1851 (2020); <\/em>Louis Henkin, Foreign Affairs and the United States Constitution\u202f203 (2d ed. 1996); Ryan Goodman, \u201cMaduro Capture and the President\u2019s Duty to Faithfully Execute the UN Charter, Just Security <\/em>(Jan. 3, 2026) [https:\/\/www.justsecurity.org\/127962\/maduro-capture-operation-and-presidents-duty-to-faithfully-execute-un-charter\/; Deborah Pearlstein, Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land, Opinio Juris (2015). <\/p>\n\n\n\n Neither of the two cases cited in the 1989 OLC Opinion support its conclusion that a non-self-executing treaty provision does not bind the president under for the Take Care Clause. In Pauling v McElroy, <\/em>164 F. Supp. 390 (D.D.C. 1958), the district court simply found that the provisions of the UN Charter involving the Trusteeship Agreement for the Trust Territory of the Pacific Islands are \u201cnot self-executing and do not vest any of the plaintiffs with individual legal rights which they may assert in this Court.\u201d Similarly, in Sei Fugii v. State of California<\/em>, the California Supreme Court held that is the human rights provisions of the Charter cited by plaintiffs (Articles 1, 55 and 56 ) were not-self executing because the member States only \u201cobligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights [and] it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives.\u201d5<\/sup> 38 Cal. 2d. 720,723 (Cal. 1952). In other words, as the court explained, the provisions are \u201cframed as a promise of future action\u201d and \u201clack the mandatory quality and definiteness.\u201d <\/p>\n\n\n\n Moreover, although the\u202fSei Fujii<\/em>\u202fcourt held that the provisions of the UN Charter relied upon by the plaintiff were \u201cnon-self-executing\u201d because they reflected objectives and goals, the court explained that other provisions of the Charter do meet the criteria for self-execution as binding domestic law because they \u201cemploy[s] language which is clear and definite and manifests that intention.\u201d Id<\/em>. at 724 (citing Article 104 (“The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.\u201d) and Art. 105 (“1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the\u202fMembers of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.”). Unlike the provisions at issue in Sei Fugii<\/em>, Article 2(4) is not a provision which sets forth objectives and goals. It states a clear mandate that members of the United Nations \u201cshall refrain from the threat or use of force against the territorial integrity or political independence of any state\u201d Moreover, to reenforce the mandatory nature of this provision, the first sentence of Article 2 states that the members \u201cshall act in accordance with the following principles\u201d listing the prohibition against the use of force as one of the seven principles. Thus, an argument can be made that Article 2(4) should be classified as a \u201cself-executing\u201d provision. <\/p>\n\n\n\n The United States\u2019 invasion of Venezuela is a dangerous disregard for the UN Charter. As Yale Law School Professors Oona Hathaway and Scott Shapiro warned last year with respect to the decline in the respect for international law: \u201cIf the world\u2019s most powerful state can flout long-settled expectations with impunity, others are likely to feel they can do the same. And once states no longer expect one another to play by the rules, the system that depended on that expectation will crumble\u2014not all at once, but piece by piece until it collapses altogether.\u201d Oona A. Hathaway and Scott J. Shapiro, \u201cMight Unmakes Right: The Catastrophic Collapse of Norms Against the Use of Force, Foreign Affairs (July\/Aug. 2025). The January 3d attack \u201crepresents the most harmful attack yet on the rules-based order. It is not just the existing international legal system that is in jeopardy now. At risk is the survival of any rule at all \u2013and without them any constraint on the exercise of state powers.\u201d Oona A. Hathaway and Scott J. Shapiro, “A World Without Rules<\/a>.” Foreign Affairs<\/em>, January 13, 2026. See also<\/em> Oona Hathaway, \u201cThe Great Unraveling Has Begun<\/a>,\u201d New York Times<\/em> (Jan. 6, 2026). <\/p>\n\n\n\n This disregard for Article 2(4) should be especially troubling to members of the Church of the Brethren because it has long recognized the importance of international law. Our 1947 Annual Conference declared: \u201cWe urge our nation not to side-step the United Nations, but to be the first to offer the surrender of our national sovereignty to a world government of, by, and for the peoples of the world; and to be ready to spend resources on its promotion and establishment commensurate with our national in spending for purposes of destruction.\u201d \u201cResolution on Peace,\u201d Minutes of the 161st Recorded Annual Conference of the Church of the Brethren, held at Orlando, FL, 10-15 June 1947, 92). Similarly, the 1996 Annual Conference Statement calls on us to \u201cencourage the United States and other countries to comply with existing international laws and accept the jurisdiction of the International Court of Justice as compulsory.\u201d Nonviolence and Humanitarian Intervention, 1996 Annual Conference Statement<\/a>. <\/p>\n\n\n\n Constitutional Limitations on the President and the War Powers Act <\/strong> <\/p>\n\n\n\n The military action taken against Venezuela by the President also violates the limitations set forth in the U.S Constitution and the War Powers Act of 1973 on the powers of the President. The framers of the Constitution were concerned that the powers of the federal government should not be vested in a single individual or body. Accordingly, the Constitution set forth a system of checks and balances with respect to both military and domestic affairs. Indeed, the framers viewed placing the power to initiate war in a single person or entity was particularly dangerous. In the debate on the ratification of the Constitution, John Jay warned in Federalists No. 4 that absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. <\/p>\n\n\n\n Therefore, although Article II of the Constitution provides that the President \u201cshall be the Commander in Chief of the Army and Navy of the United States,\u201d Article I, Section 8 of the Constitution vests in Congress\u2014not the President\u2014the exclusive power to declare war.\u202f Section 8 of Article I also limits the power for a President to make war by giving Congress the power of the purse. <\/p>\n\n\n\n Over the course of history, however, these checks on the President\u2019s power unfortunately failed to be an effective bar in preventing Presidents from initiating or entangling the United States in undeclared wars.6<\/sup> In 1973, in response to the Vietnam War, Congress enacted the War Powers Act of 1973 to provide a procedural framework to reinforce Congress\u2019 checks on the President. See 50 U.S.C. 1544\u20131548.7<\/sup> The War Powers Resolution has three main components: (1) the President \u201cin every possible instance shall consult with Congress\u201d before introducing the U.S. military and must report to Congress within 48 hours of introducing armed forces into hostilities or imminent hostilities, id<\/em>. at 8<\/sup>; (<\/strong>2) forces must be removed within 60 days (with a possible 30-day extension for safe withdrawal) unless Congress declares war or grants authorization, id<\/em> at 1544(b); and (3) the President must report periodically on the status, scope, and duration of such involvement, id<\/em>. at 1542(c). Under the Act, any member of the House or Senate, regardless of committee assignment, can invoke section 5(c) of the War Powers Resolution and get a\u202ffull floor vote\u202fon whether to require the president to\u202fremove U.S. armed forces from hostilities. <\/p>\n\n\n\n The House Report on the War Power Act highlighted key words in the provision requiring consultation with Congress before introducing U.S. Armed Forces into hostilities. See H.R. Rep. 93-287 (1973). First, the Report explained that the use of the word \u201cevery possible instance\u201d was intentional and prior consultation should be considered possible except \u201cin extreme circumstances such as a nuclear missile attack or direct invasion.\u201d Id.<\/em> at 6. Second, the Report rejected \u201cthe notion that consultation should be synonymous with merely being informed. Rather consultation in the provision means that a decision is pending on a problem that members of Congress are being asked by the President for their advice and opinions and in appropriate circumstances, this approval of action is contemplated.\u201d Id<\/em>. Finally, the report noted that the word \u201chostilities\u201d was substituted for the phrase \u201carmed conflict\u201d \u201cbecause it was considered to be somewhat broader in scope.\u201d Id<\/em>. at 7. <\/p>\n\n\n\n In this case, despite having apparently planned the military action for months, the President failed to consult or seek approval from Congress prior to taking its actions against Venezuela or at the very least provide a classified briefing to the leaders of the Congressional intelligence committees. <\/p>\n\n\n\n In its opinion, the OLC seeks to justify its unilateral action by alleging that the action did not \u201crise to the level of war in the constitutional sense.\u201d 2025 OLC Opinion at 22. It stated that the determination of \u201cwhether the President may unilaterally order any<\/em> use of military force in another country\u201d is based on two factors: (1) whether the President can reasonably determine that the action serves important national interests, and (2) whether the \u2018anticipated nature, scope, and duration\u2019 of the conflict falls within the President\u2019s constitutional authority.\u201d Id<\/em>. at 7. This is the same two-part test that the OLC has been used other instances. See<\/em> April 2018 Airstrikes Against Syrian Chemical Weapons Facilities, 42 Op O.L.C. 39, 41 (2018); Authority to Use Military Force in Libya, 35 Op. O.L.C. 20, 37 (2011). <\/p>\n\n\n\n This test is itself flawed. First, as some legal scholars have noted, the \u201cnational interest\u201d prong provides no real check on the President because it does not set forth any criteria for which interests qualify as an \u201cimportant national interest.\u201d See<\/em> Curtis Bradly & Jack Goldsmith, \u201cOLC\u2019s Meaningless \u2018National Interests\u2019 Test for the Legality of Presidential Use of Force, Lawfare<\/a> (June 5, 2018). Nor does it require the Administration to consider countervailing international or long-term concerns. Moreover, the test fails to recognize that the OLC is comprised of attorneys, not experts in international relations or foreign policy. Thus, they are required to depend on the facts provided to them by other components of the Executive Branch. The checks and balances provided by the Constitution and the War Powers Act, on the other hand, provide an opportunity for other viewpoints to be raised and considered. Second, the test presumes that the President has the authority to unilaterally order the use of military forces in certain circumstances and ignores the War Power Act. In any case, even under this test, OLC\u2019s analysis of the two factors in this case is incorrect. <\/p>\n\n\n\n The OLC predicated its discussion of the first factor by accepting the Administration\u2019s characterization of the operation as \u201claw enforcement operation.\u201d 2025 OLC Opinion at 7. It noted that \u201cthis is not the first time that the Executive Branch has concluded that it is lawful to use the military to support the extraterritorial arrest of particularly dangerous individuals.\u201d Id<\/em>. As support, the OLC cited three prior instances: (1) the detention of an al-Qaeda member accused of participating in the 1998 bombings of U.S embassies in East Africa, (2) the capture of Abu Khatallah, who was responsible for the attack on the U.S. embassy in Benghazi, and (3) the capture of his co-conspirator Mustafa al-Imam. None of those examples, however, involved the use of fighter jets or anything close to the amount of military force used on January 3d. Nor did any of those cases involve the capture of a de facto leader of a sovereign country. <\/p>\n\n\n\n With respect to the first question, the OLC then identified various factors which it claimed were \u201ceither national interests that would support military action in its own right, or demonstrate why the military support is needed to conduct an otherwise purely law enforcement operation.\u201d Id<\/em>. at 9. The OLC first concluded that the severity of Maduro\u2019s alleged conduct \u2013 facilitating the funding of designated terrorist organizations and alleged ties to Hezbollah and Iran \u2013 combined with his access to significant weaponry \u201cwould justify a use of force significantly higher than most law-enforcement operations could justify.\u201d Id<\/em>. at 9. The OLC concluded that \u201cif the FBI were to attempt to arrest Maduro without assistance from the military, the mission would undoubtedly fail.\u201d Id<\/em>. at 10. This concern for the level of armed resistance to the arrest, however, begs the question of whether the extraterritorial arrest of Maduro was a wise policy choice in the first place considering the possible adverse consequences of the US military action in the region and internationally. <\/p>\n\n\n\n The OLC also sought to justify the use of military action on the grounds that Maduro was the president of Venezuela. It stated that \u201cbecause Maduro controls the military of a sovereign nation, his criminal conduct presents a greater risk to the public than could any ordinary criminal by threatening \u2018regional stability\u2019 in a \u2018critical region\u2019 in this hemisphere.\u201d Id<\/em>. at 12. With respect to this point, the OLC noted \u201cin assessing the dangerousness of this particular felon, it would be remised for the President not to consider that ever since the U.S Navy shifted resources to the theater in order to conduct [redacted] Maduro has engaged in a series of aggressive actions ranging from buzzing American vessels to placing troops on the border of Columbia.\u201d Id<\/em>. at 13; see also id<\/em>. at 11 (\u201cIn addition to the near certain deaths of the personnel involved [redated] such a failed operation would lead Maduro to retaliate against U.S. interests in the region\u201d and lead to regional instability). The OLC\u2019s discussion of regional instability is flawed in at least two ways. First, although it admits that Maduro\u2019s recent military actions were in response to United States\u2019 own military actions \u2013 namely the build-up of its military ships in the Caribbean and attacks on small fishing boats in the Caribbean, it fails to acknowledge that such U.S military action may have contributed to the regional instability. Second, OLC fails to give any consideration to further regional instability that may result from the U.S. proposed military attack. The failure to consider such consequences is especially striking in view of OLC\u2019s own statement in the same paragraph that \u201c[a]s history amply demonstrates, . . . troop movements are inherently dangerous because they can be misinterpreted, causing small issues to flare up into major bloodshed.\u201d Id<\/em>.9<\/sup> In fact, OLC\u2019s reference to instability that resulted from Maduro\u2019s response the initial movement of U.S. military ships to the Caribbean illustrates how military actions can increase regional instability. <\/p>\n\n\n\n Finally,\u00a0the\u00a0OLC\u00a0suggests that \u201cforce may be necessary to protect civilians both\u00a0in\u00a0Venezuela and abroad from Maduro.\u201d\u00a0\u00a0Id.<\/em>\u00a0at\u00a011-12.\u00a0\u00a0In its discussion of this consideration,\u00a0the\u00a0OLC cites\u00a0various\u00a0human rights\u00a0reports\u00a0indicating\u00a0that many Venezuelans live in poverty without access to food and medicine and that \u201cillegal mining has led to the displacement of indigenous communities and exacerbated issues involving child labor.\u201d\u00a0\u00a0Id<\/em>.\u00a0at 11.\u00a0\u00a0It also\u00a0cites\u00a0reports\u00a0indicating\u00a0that Maduro is arresting thousands of political dissidents and torturing some detainees.\u00a0\u00a0Id<\/em>. at 12.\u00a0\u00a0OLC then summarily\u00a0states\u00a0\u201cthat non-forceful options are unlikely to be effective\u201d and \u201csuch deliberate endangerment of the public at large and cruelty to dissents and children would justify increased use of force in the law-enforcement context.\u201d\u00a0\u00a0Id<\/em>. at\u00a012.\u00a0Although\u00a0there is no dispute these are legitimate\u00a0and serious\u00a0humanitarian\u00a0concerns, the OLC offers no explanation how the\u00a0proposed\u00a0military action\u00a0would do anything to\u00a0resolve\u00a0such concerns.\u00a0\u00a0Indeed, history has shown that\u00a0non-violent methods are more effective in\u00a0resolving\u00a0such\u00a0social and economic problems\u00a0and building long-term\u00a0stability.\u00a0See\u00a0Robert C. Johansen,\u00a0Where the Evidence Leads\u00a0<\/em>(2021).\u00a0\u00a0\u00a0<\/p>\n\n\n\n The OLC then proceeded to consider the second factor — whether the proposed action based on its nature, scope and duration rises to the level of a \u201cconstitutional war\u201d and concluded that \u201cthe operation falls short of war in the constitutional sense.\u201d Id<\/em>. at 13. It began its discussion by acknowledging that \u201cthe proposed action involves the type of forces most likely to require congressional approval: \u2018boots on the ground.\u2019\u201d 2025 OL\u00c7 Opinion at 13. It then quickly dismisses this factor by finding \u201c[i]t unlikely that even the full loss of the strike force would amount to the type of sustained casualties that would amount to a constitutional war.\u201d Id<\/em>. <\/em>at 14. In reaching this conclusion, the OLC cited, \u201cby way of comparison,\u201d that \u201cUnited States suffered 40,934 casualties during the Vietnam War\u201d and \u201c4,432 in Operation Iraqi Freedom.\u201d Id<\/em>. at 14. <\/p>\n\n\n\n Comparing the number of casualties in conflicts that have ended with the predictions of possible casualties in a proposed action is fundamentally flawed. First, as the OLC concedes, \u201cthe most difficult part of the analysis is . . . whether the action will lead <\/em>to war.\u201d Id<\/em>. at 15. Vietnam War did not start with the expectation that it would result in the loss of 40,934 U.S. military casualties; it started with U.S. officials acting as \u201cadvisors.\u201d Similarly, Operation Iraqi Freedom lasted many years after President Bush proclaimed success under the banner \u201cmission accomplished.\u201d In its Opinion, the OLC, however, blindly accepted the military\u2019s assurances that it did not \u201ccurrently plan any action that would amount to a constitutional war\u201d and thus it only needed to weigh the risk of possible casualties in executing the arrests. Id<\/em>. at 14. Second, the measuring the number of casualties focuses only on the number of American lives lost, it fails to consider the number of other lives lost in the military action. <\/p>\n\n\n\n In its Opinion, the OLC also noted that the proposed action would be preceded by a preparatory bombing \u2013 the \u201ctype of operation that we consider important in whether an action amounts to a war.\u201d Id<\/em>. However, OLC then failed to offer any explanation why that important factor should not be considered here as a factor indicating the proposed action rises to the level of a \u201cconstitutional war.\u201d <\/p>\n\n\n\n In addition, the OLC acknowledged that its prior opinions have found that \u201c[h]aving an open-ended goal suggests that a conflict will be prolonged and thus more likely to constitute \u2018war\u2019\u201d requiring Congressional authorization. Id<\/em>. at 16. It acknowledged that \u201c[c]ritics are likely to point out that we have repeatedly concluded that the President could order a surgical strike on an adversary because he was not attempting to effectuate regime change, which is an inevitable consequence of a successful operation here.\u201d Id<\/em>. <\/strong>But it then quickly dismissed any consideration of this factor by stating that \u201cultimately the question [of whether the action constitutes a \u201cwar\u201d in the constitutional sense] will turn on the likelihood of substantial and sustained hostilities resulting from the proposed action.\u201d Id<\/em>. <\/p>\n\n\n\n In short,\u00a0the\u00a0OLC\u00a0brushed aside the factors\u00a0identified\u00a0in its prior\u00a0opinions\u00a0as\u00a0indicating\u00a0that an action would arise to\u00a0a \u201cwar in the constitutional\u00a0sense\u201d\u00a0and simply accepting\u00a0the military\u2019s\u00a0assurance\u00a0that the\u00a0nature and scope of the proposed action was limited.\u00a0\u00a0But that\u00a0assurance\u00a0is\u00a0belied by\u00a0subsequent\u00a0statements and actions by President Trump\u00a0and other officials.\u00a0\u00a0They\u00a0suggest\u00a0that the Administration\u2019s\u00a0proposed\u00a0action\u00a0on January 3d was\u00a0part of\u00a0much\u00a0broader plan than\u00a0bringing Maduro and his wife to the United States for trial.10<\/sup>\u00a0In\u00a0explaining his reasons for invading Venezuela, the\u00a0President Trump proclaimed that\u00a0\u201cwe are going to\u00a0run Venezuela and \u201cwe\u2019re going to take our oil back.\u201d\u202f He then proudly announced on January 6 that, \u201cthe interim authorities in Venezuela will be turning over between 30 and 50 million barrels of high quality, sanctioned oil to the United States of America.\u201d\u00a0\u00a0Importantly, he also made it clear that the\u00a0roughly\u00a0$2 billion\u00a0derived from the sale of this Venezuelan oil is controlled by him alone.\u00a0\u00a0It is currently being held in a bank in the monarchy of Qatar.\u00a0\u00a0<\/p>\n\n\n\n OLC\u2019s finding that the military action on January 3 did not rise to the level that required Congressional consultation is very troubling. It sets a new higher bar for what it considers a war that requires Congressional consultation because the attack had earmarks of the type of military actions that the OLC had previously identified as indicating that an action required Congressional consultation. The OLC\u2019s definition of a \u201cconstitutional war\u201d reminds one of the line spoken by Humpty Dumpty in Lewis Carroll\u2019s Through the Looking Glass (1871): “When I use a word, it means just what I choose it to mean \u2014 neither more nor less.\u201d As John Jay warned during the Constitutional Convention, placing the power to initiate war in a single person or entity was particularly dangerous. That is why the framers sought to include a system of check and balances to guard against that danger, and why Congress added further safeguards in the War Powers Act. <\/p>\n\n\n\n Limitations on Extraterritorial Law Enforcement<\/strong> <\/p>\n\n\n\n The Administration\u00a0has\u00a0sought\u00a0to avoid\u00a0the limits\u00a0on executive power under the Constitution and War Powers Act\u00a0by claiming that the action\u00a0taken in Venezuela\u00a0was simply\u00a0a law-enforcement\u00a0action\u00a0with military\u00a0assistance,\u00a0not\u00a0an\u00a0act of invasion.11<\/sup><\/strong>\u00a0 This claim, as explained above, is belied by statements by President Trump and other Administration officials\u00a0regarding\u00a0taking back \u201cour oil\u201d and \u201crunning Venezuela.\u201d\u00a0<\/p>\n\n\n\n In any case, to the extent it was motivated by law enforcement concerns, it ignores the limitations under international law on law enforcement actions in another sovereign nation. Although international law allows a nation to pass laws over offences committed abroad, the exercise of enforcement jurisdiction is strictly limited to a nation\u2019s own territory without the consent of the other nation. See Restatement Third of Foreign Policy, \u00a7 432. Consent usually obtained under bilateral extradition treaties. In such cases, a formal request is made through diplomatic channels by the State Department with the request prepared by the Department of Justice. <\/p>\n\n\n\n In a 1980 memorandum, the OLC recognized this limitation and found that the FBI had no authority to apprehend and abduct a fugitive residing in a foreign state without the consent of the asylum state. See<\/em> Extraterritorial Apprehension by the Federal Bureau of Investigation, <\/em>4B Op. OLC 543 (1980). In fact, OLC warned that doing so could render FBI agents subject to extradition to the asylum state to face kidnapping charges. The 1989 OLC Opinion, rescinded that opinion, reaching the opposite conclusion. 1989 OLC Opinion at 183. Noting that Congress had given some criminal laws \u2014 including those involving terrorism and narcotics \u2014 international reach, the OLC asserted that \u201cin order for the FBI to have the authority necessary to execute these statutes, its investigative and arrest authority must have an equivalent extraterritorial scope.\u201d In its Opinion, however, the OLC \u201ccaution[ed] that this memorandum address[ed] only whether the FBI has legal authority to carry out law enforcement that contravene international law. It does not address the serious policy considerations that weigh against carrying out such operation.\u201d Id<\/em>. at 164. <\/p>\n\n\n\n Admittedly, the legal restrictions placed on extraterritorial extraditions do make them more difficult and such extradition proceedings would be futile where, as here, Maduro was a sitting president. Moreover, in civil law countries, such as Venezuela, do not extradite their own nationals alleging that nationality justifies jurisdiction and demanding the U.S criminal case be \u201ctransferred\u201d to home country for prosecution. The fact that there are legal barriers to the arrest of Maduro in this case, however, does not justify ignoring international law. Transnational crimes such as drug-trafficking, money-laundering and its related violence require international collaboration among law-enforcement partners worldwide. Unilateral actions that run afoul international law and norms can impede such cooperation. This harm has already occurred in response to United States disregard of international law with its attacks this fall on fishing boats alleged to be carrying narcotics. In response to those actions, Great Britain and other countries have refused to share intelligence with the United States with respect to international drug trafficking. <\/p>\n\n\n\n CONCLUSION<\/strong> <\/p>\n\n\n\n The military action taken by the President in Venezuela on January 3, 2026, raises not only serious moral concerns but also violated the Article 2(4) of the UN Charter, the limits on the power of the President under the Constitution and the War Powers Act, and limitations on extraterritorial extraditions under international law. These legal considerations continue to be relevant for other contexts such as the recent military attack on Iran by United States and Israel. <\/strong> <\/p>\n\n\n\n 1 This includes 8_boat strikes killing 25 after the January 3, 2026,<\/p>\n\n\n\n 2 See United Nations Charter, Art. 51 (\u201cNothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.\u201d).<\/p>\n\n\n\n 3 See also Montevideo Convention on the Rights and Duties of States (which both the U.S. and Venezuela have ratified) which provides in Article 11 that \u201c[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.\u201d Moreover, both the United States and the International Court of Justice have recognized that this prohibition reflects customary international law. See Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Court of International Justice, Report of Judgment, \u00b6 190.<\/p>\n\n\n\n 4 The opinion was signed by then Assistant Attorney General William Barr and is thus commonly referred to as the Barr Memorandum.<\/p>\n\n\n\n 5 Article 55 declares that the United Nations “shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion,” and in article 56, the member nations “pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.”<\/p>\n\n\n\n 6 The only wars declared by Congress are the War of 1812 (June 18, 1812), Mexican-American War (May 13, 1846), Spanish-American War (April 5, 1898), World War I (April 6, 1917 \u2013 Germany and Dec 7, 1917 – Austria-Hungry ), World War II (Dec. 8, 1941 \u2013 Japan and Dec. 11, 1941 \u2013 Germany and Italy and June 5, 1942 \u2013 Bulgaria, Hungry and Romania)<\/p>\n\n\n\n 7 Section 2(a) of the Act states that it is intended \u201cto fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated. However, as some have noted, \u201cby recognizing that a President may use armed forces for up to 90 days without seeking or obtaining legislative power, the [Act] \u2018legalizes a scope for independent presidential powers that would have astonished the framers.\u2019\u201d Louis Fisher Presidential War Power at 145(2004).<\/p>\n\n\n\n 8 The written report must include (a) the circumstances necessitating the introduction of the military, (b) the constitutional and legislative authority under which introduction took place, and (3) the estimated scope and duration of the hostilities or involvement. 50 U.S.C 1543(a).<\/p>\n\n\n\n 9 In a footnotes it cites to how an effort to warn French occupiers of a frontier fort led to a 15 minute firefight sparking the Seven Year War (citing David Preston, When Young George Washington Started a War, Smithsonian Mag. (2019), and discussing the claim that troops massed at the border between Greece and Bulgaria engaged in a fire fight when a Greek soldier chased his dog across the line of demarcation (citing War of the Stray Dog \u2013 The Incident at Petrich 1925, Balkan Military History, https:\/\/balkanhistory.org\/)<\/p>\n\n\n\n 10 Moreover, the Administration\u2019s concern for drug trafficking is undercut by President Trump\u2019s pardon of former Honduran President Juan Orlando Hernandez who was serving a 45-year sentence for assisting in bringing 400 tons of cocaine into the United States.<\/p>\n\n\n\n 11 The Administration attempts to compare the situation to President George H. W. Bush\u2019s use of the military in 1989 in Panama against Noriega is also not persuasive. First, it ignores the fact that UN General Assembly condemned the action by the United States. See https:\/\/www.upi.com\/Archives\/1989\/12\/29\/UN-condemns-US-military-action-in-Panama\/6130630910800\/#google_vignette<\/a>. Second, without weighing in the ultimate legality of the use of the military in Panama, there are differences. See https:\/\/open.substack.com\/pub\/justiceconnection\/p\/the-stark-differences-between-the?utm_campaign=post&utm_medium=web<\/a> (article by Betsy E. Burke, a former attorney with the Department of Justice, spent six years in the Tax Division before joining the DOJ\u2018s Office of International Affairs in 1989 until she retired in 2019. At the Office of International Affairs. spent six years in the Tax Division before joining the Office of International Affairs in 1989. In that role, she worked with other countries, informally through U.S. law and Memoranda, informally through U.S. law and Memoranda of Understanding, and formally under more than 200 extradition and mutual legal assistance treaties, as well as international conventions. Her career focused on apprehending criminals and gathering evidence abroad for U.S. prosecutions and, incidentally to that legal work, promoting the rule of law among United States partners throughout the world.<\/p>\n","protected":false},"excerpt":{"rendered":" The military action taken in\u00a0Venezuela\u00a0on January 3, 2026, raises serious moral concerns and violated the Article 2(4) of the UN Charter, the\u00a0limits on\u00a0the power of the President under\u00a0the\u00a0Constitution and the War Powers Act, and\u00a0limitations on extraterritorial extraditions under\u00a0international law.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"ngg_post_thumbnail":0,"footnotes":""},"categories":[43],"tags":[48,25,16,20,49,45],"class_list":["post-751","post","type-post","status-publish","format-standard","hentry","category-peace","tag-bombing","tag-military","tag-office-of-peacebuilding-and-policy","tag-peace","tag-peacebuilding","tag-venezuela"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/posts\/751","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/comments?post=751"}],"version-history":[{"count":6,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/posts\/751\/revisions"}],"predecessor-version":[{"id":759,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/posts\/751\/revisions\/759"}],"wp:attachment":[{"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/media?parent=751"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/categories?post=751"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.brethren.org\/peacebuilding\/wp-json\/wp\/v2\/tags?post=751"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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