Marco Mendicino is a former federal prosecutor, federal cabinet minister for immigration and public safety and chief of staff to Prime Minister Mark Carney. He is now senior counsel at Cassels, Brock & Blackwell LLP. He is a political analyst for CTV News and a columnist for CTVNews.ca. The sensational arrest of Nicolas Maduro for conspiracy and narco-terrorism charges, contrary to the national security interests of the United States, was breathtaking by any measure. The now deposed Venezuelan ruler was captured following a covert U.S. military operation carried out beyond its borders, as special forces infiltrated the presidential compound in the middle of the night, grabbed their target, and swiftly extracted him back to American soil. From a tactical perspective, the mission was flawless. The legality of the United States’ use of military force to execute Maduro’s arrest for law-enforcement purposes is already the subject of intense debate among American legislators and legal scholars. Perhaps the most contentious issue is that of congressional oversight. Some will speculate whether the elected branch would have supported the kinetic manner in which Maduro was apprehended had they been briefed beforehand. Hindsight is twenty-twenty, but the fact remains that the U.S. military, having achieved its objective, subsequently relinquished Maduro safely and securely into the custody of the judicial system. From this point forward, his fate will be decided in a courtroom, according to the dictates of the law. The surrender of Maduro from the military to the judiciary is neither superficial nor cosmetic, but rather a consequential transfer of state power from one branch of government to the other. However, the accountability between the branches does not end there. Prosecution before the U.S. courts brings with it numerous constitutional safeguards to ensure a fair trial, including the right to counsel and to be made aware of the charges, access to defence disclosure, and the option to be tried by a jury. Logically, there are severe consequences for those found guilty of serious crimes. If convicted, Maduro faces the strong likelihood of serving out a life sentence in a jail cell, which would be a fitting punishment given his abhorrent record of human rights abuses. The rule-of-law protections that attach to that jeopardy in U.S. criminal proceedings are thus substantial and provide vital assurances for all who want to see justice done. How these assurances hold up will depend on the adjudication of complex legal questions which are at the crux of the case. Here, the indictment alleges that Maduro led a conspiracy involving the malicious use of Venezuelan state resources to traffic cocaine, knowing it would be unlawfully imported into the United States. Prosecutors contend the scheme was deliberate, coordinated, and directed against U.S. national security interests. While the Maduro proceeding may seem extraordinary, it is not unprecedented. The U.S. justice system confronted a strikingly similar case in the matter of Manuel Noriega, over 30 years ago. The key parallels are that Noriega was also a de facto Latin American ruler, never recognized as the head-of-state for Panama, arrested abroad during an American incursion, and tried in a U.S. federal court for narcotics trafficking charges. As a modern analogue, the Noriega case sheds light as to how the courts today may dispose of the numerous legal issues Maduro is likely to raise in an effort to quash the indictment in which he is named. Defence #1: Head-of-State immunity Among his primary defences, Maduro will almost certainly claim that he should be afforded immunity based on his purported status as the leader of the Venezuelan government. The core argument is that, under customary international law, sitting heads-of-state are immune from prosecution in foreign courts. If immunity applies, the argument goes, the court lacks jurisdiction altogether, and therefore the charges should be dismissed. In Noriega, the U.S. courts held that this class of immunity turns on executive recognition. In other words, in order for immunity to apply, the defendant would first have to be officially recognized by the executive branch as the legitimate foreign head-of-state, which is a determination to which the courts grant the highest level of constitutional deference. The U.S. has never bestowed that recognition on Maduro and has conversely insisted that he never had a legitimate mandate to govern. Under Noriega, that position is dispositive. Absent an ability to distinguish himself from that case, Maduro would have to argue that the courts should expand or change the legal test to include a new class of immunity for de facto heads of state, or that recognition was somehow implied through the actions of the U.S., despite its statements. That is a high bar for Maduro to meet, as the courts do not often reverse established precedent. Therefore, without executive recognition, immunity does not shield the defendant. Defence #2: Unlawful capture and violation of Venezuelan sovereignty Maduro is sure to assert that his capture was unlawful under international law. His defence will contend that the operation constituted an impermissible use of force on the territory of a sovereign state, carried out without consent, extradition, or UN Security Council authorization, in breach of the UN Charter and customary international law. By bypassing established international norms, Maduro’s anticipated position is that the United States substituted lawful cooperation with coercive force in order to seize a foreign leader through unilateral action. The defence will argue that the courts should not legitimize jurisdiction if it was obtained through conduct that undermines the principles of sovereignty and non-intervention. Noriega posited the same theory, claiming that his arrest during the U.S. invasion of Panama violated international law and Panamanian sovereignty, and that the court did not have jurisdiction. When determining this issue, U.S. Courts have relied on the Ker–Frisbie doctrine, which holds that the manner of a defendant’s capture does not defeat jurisdiction, absent extreme misconduct that would shock the conscious of the public, such as torture. Based on this legal threshold, the Maduro defence would have to introduce evidence of such egregious mistreatment. Otherwise, the U.S. courts are not likely to consider the circumstances of his capture as a reason to invalidate jurisdiction. As they held in Noriega’s case, claims of sovereignty violation or unlawful use of force may be pursued internationally or diplomatically, but do not automatically bar prosecution in a U.S. criminal court. Defence #3: Political purpose and regime change Maduro can also be expected to claim his arrest was driven more by political purpose than by law enforcement; specifically, to force regime change and pave the way for U.S. control over Venezuela and its resources. The defence will attempt to argue that the indictment represents the culmination of a U.S. campaign to remove the Maduro government, which it never recognized, and that the criminal process is being used to legitimate outcomes that ought to be pursued through diplomacy or multilateral mechanisms. The defence will also point to various public statements by the U.S. administration regarding Venezuelan oil as evidence that the arrest and prosecution are instruments of economic coercion rather than law enforcement. In examining this issue, the U.S. court can be expected to apply the strong presumption of prosecutorial regularity, which can only be displaced if the defence meets the demanding standard for establishing both discriminatory intent and discriminatory effect. In practical terms, Maduro would have to show similarly situated individuals were not prosecuted for impermissible reasons. The courts concluded that Noriega did not meet that burden, holding that a prosecution does not become unlawful simply because it may align with U.S. foreign policy. From the prosecution’s perspective, Maduro should fail here for the same reasons Noriega did. Under settled U.S. precedent, coincidental alignment between a prosecution and foreign-policy objectives does not render the case unlawful. Moreover, the U.S. courts are not easily convinced to inquire into or judicially review the underlying motives, strategy, or objectives of the executive when reviewing criminal indictments, out of deference to the different branches of government. If Congress has authorized the statute, and the indictment pleads the elements of the offences charged, the courts will not nullify the trial on grounds alone that it may have political consequences. The Noriega precedent applied In sum, under U.S. law, Noriega stands for the propositions that head-of-state immunity follows only after executive recognition; the use of force to effect extraterritorial capture does not automatically override the jurisdiction of the court; and a criminal indictment is not nullified because it may align with foreign policy, for which there may be significant impacts on the geopolitical landscape. If the U.S. courts adhere to the Noriega precedent, Maduro’s legal defence will have a very steep uphill battle ahead.
