Latest / Bloomberg Law / The Case Against Ousted Venezuelan President Nicolás Maduro

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The Case Against Ousted Venezuelan President Nicolás Maduro · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
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  Speaker 2: The Illegitimate Dictator Maduro was the king vin of Avas
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  Speaker 2: criminal network responsible for trafficking colossal amounts of deadly and
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  Speaker 2: elicited drugs into the United States.
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  Speaker 1: President Donald Trump announced the stunning middle of the night
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  Speaker 1: military operation that captured now ousted Venezuelan president Nicholas Maduro
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  Speaker 1: and his wife, who now faced charges in a narco
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  Speaker 1: terrorism case in a Manhattan federal court. It will be
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  Speaker 1: an extraordinary legal battle with major geopolitical ramifications, but little
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  Speaker 1: was said about Maduro or the drug trafficking charges during
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  Speaker 1: the nearly hour long press conference on Saturday. The focus
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  Speaker 1: was on the running of Venezuela and on oil.
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  Speaker 2: Well, we're going to be running it with a group,
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  Speaker 2: and we're going to make sure it's run properly. We're
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  Speaker 2: going to rebuild the oil infrastructure, which of course billions
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  Speaker 2: of dollars. It'll be paid for by the oil companies directly.
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  Speaker 2: They will be reimbursed for what they're doing, but it's
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  Speaker 2: going to be paid and we're going to get the
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  Speaker 2: oil flowing the way it should be. As you know,
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  Speaker 2: it was just a minor flow. It is actually a
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  Speaker 2: minor flow for what they have.
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  Speaker 1: During an initial court appearance on Monday, both Maduro and
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  Speaker 1: his wife pleaded not guilty to the charges. Maduro was defiant, saying,
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  Speaker 1: I am a kidnapped president. I am a prisoner of war.
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  Speaker 1: My guest is former federal prosecutor Jimmy Garula, a professor
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  Speaker 1: at Notre Dame Law School. Jimmy. Initially, defense attorneys are
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  Speaker 1: going to challenge the legality of the court's jurisdiction over Maduro,
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  Speaker 1: if his capture breached international law cannot be used as
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  Speaker 1: the grounds to avoid prosecution.
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  Speaker 3: Well, it's a good question.
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  Speaker 4: I think the invasion of Venezuela both violates US constitutional
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  Speaker 4: law and international law. From a constitutional law perspective, this
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  Speaker 4: was an active war, you know, the invasion of Venezuela,
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  Speaker 4: the toppling of their president is apprehension. I think the
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  Speaker 4: bombing of Caracas, I think upwards of thirty or more
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  Speaker 4: of President maduro security guards were killed.
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  Speaker 3: I think it's clearly an active war.
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  Speaker 4: And the Constitution is very clear that Congress must give
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  Speaker 4: authority for this type of action, and Congress did not.
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  Speaker 4: I mean, Congress was made aware of this action as
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  Speaker 4: was taking place or shortly after it took place. So
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  Speaker 4: I think that there's an issue, an issue there with
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  Speaker 4: respect to international law. I think there's two important aspects
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  Speaker 4: to that. One is the illegality, but the other is
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  Speaker 4: a criminality. I think it's both an illegal act and
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  Speaker 4: a criminal act under the UN Charter, specifically Article two,
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  Speaker 4: Section four are prohibited from exercising the use of force
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  Speaker 4: within the territory of another states to impact the political
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  Speaker 4: independence of that state. So it's a violation of the
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  Speaker 4: UN Charter. But I think, perhaps even more importantly, I
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  Speaker 4: think it's a crime of aggression. So the crime of aggression,
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  Speaker 4: I mean it's an international crime. It was first prosecuted
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  Speaker 4: by the Nuremberg Tribunal following World War Two, and it
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  Speaker 4: was labeled a quote supreme international crime end quote. So
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  Speaker 4: it's the most serious criminal act of aggression, and the
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  Speaker 4: crime of aggression is a crime within the jurisdiction of
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  Speaker 4: the International Criminal Court. So what I wonder there is
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  Speaker 4: whether or not the international law criminal law aspects of
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  Speaker 4: this act of invasion would rise to the level of
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  Speaker 4: a due process challenge under the Fifth Amendment. The argument
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  Speaker 4: would be that it shocks the conscience. You know, for
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  Speaker 4: the US military to go into a foreign country in
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  Speaker 4: the manner that it did. You again, thirty or more
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  Speaker 4: of the president of Maduro security guards bombing the capital city.
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  Speaker 4: Does that shock the conscience? Is this something that the
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  Speaker 4: court should say, we don't want to have anything to
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  Speaker 4: do with, you know, we don't want to explicitly or
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  Speaker 4: implicitly support this kind of government action moving forward, and therefore,
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  Speaker 4: you know, we're going to dismiss the case on those grounds.
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  Speaker 5: It hasn't.
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  Speaker 1: The Supreme Court, though, held that criminal defendants generally can't
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  Speaker 1: challenge federal court's authority to preside over their cases by
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  Speaker 1: arguing that they were brought to the US illegally.
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  Speaker 4: That's true. That's true. So there has been, you know,
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  Speaker 4: court rulings to that effect. That's simply the fact that
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  Speaker 4: you were brought to the country, that you're apprehended in
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  Speaker 4: the foreign country and brought to the jurisdiction of the
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  Speaker 4: United States in that manner does not support a due
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  Speaker 4: process violation.
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  Speaker 3: But I think their degrees of action.
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  Speaker 4: Here, So there's one thing about surreptitious maybe having agents
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  Speaker 4: of the government go into a foreign country, snatch the defendant,
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  Speaker 4: remove him from the country, bring him to the United States.
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  Speaker 4: It's another thing and a much greater degree of misconduct
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  Speaker 4: and illegality to go into the country with military force,
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  Speaker 4: you know, bomb the country, kill government security agents, kill civilians.
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  Speaker 4: And then in addition to that, say that, as Trump
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  Speaker 4: has we're going to run the country for the foreseeable future.
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  Speaker 4: We're going to control the petroleum industry, and we're going
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  Speaker 4: to control that. And so there we kind of move
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  Speaker 4: to an actual kind of occupation of the country. So
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  Speaker 4: I think that degree of conduct makes this case particularly unique,
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  Speaker 4: even unique from what we've seen in the past. Let's say,
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  Speaker 4: with the General Noriega case and the invasion of Panama.
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  Speaker 4: I mean, so you know that has been raised as well. Look,
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  Speaker 4: you know, the US went in to Panama, they rest
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  Speaker 4: in General Noriega, and that was appelled by the courts
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  Speaker 4: and no harm, no foul, I mean, it wasn't struck down.
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  Speaker 4: Noriego was prosecuted, and none of the legal defenses raised
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  Speaker 4: prevailed in the Noriega case. But here I think there
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  Speaker 4: are some similarities, but there are some differences. And I
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  Speaker 4: think one major difference here is where the Trump administration
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  Speaker 4: is saying we're going to run the country.
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  Speaker 3: That wasn't the case in Panama.
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  Speaker 4: You know, the Bush administration put a person in place
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  Speaker 4: who was the opposition leader of the country. That person
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  Speaker 4: ran the country, not the United States, and the United
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  Speaker 4: States didn't take takeover natural resources the way that the
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  Speaker 4: president is proposing to be done in this particular case.
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  Speaker 1: I noticed that at the press conference even Secretary of
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  Speaker 1: State Rubio is saying something different than what President Trump
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  Speaker 1: is saying. But we'll see what actually happens now. There's
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  Speaker 1: also the defense might challenge the court's jurisdiction based on
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  Speaker 1: head of state immunity, and of course.
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  Speaker 4: That defense failed in the Noriega case. But nor Diego
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  Speaker 4: was was it a facto head of state? He wasn't
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  Speaker 4: the elected, you know, head of state, and here Madudo was,
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  Speaker 4: even though of course there are substantial claims that it
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  Speaker 4: was a fraudulent election and he isn't the truly elected
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  Speaker 4: head of state.
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  Speaker 3: So I think that's going to be an issue.
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  Speaker 4: It's going to be a thorny issue, and that one
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  Speaker 4: I'm not confident that defense lawyers are going to prevail
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  Speaker 4: on that claim.
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  Speaker 1: Is there any place here at all for the Supreme
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  Speaker 1: Court's opinion that President Trump, you know, American presidents are
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  Speaker 1: immune from criminal prosecution for official actions while in office.
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  Speaker 4: Well, I think it's certainly an argument that the defense
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  Speaker 4: is going to raise. I'm going to say, well, look,
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  Speaker 4: even the United States Supreme Court has held that its
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  Speaker 4: own president is immune for prosecution for official acts while
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  Speaker 4: serving in office. The counter argument is going to be, well,
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  Speaker 4: drug trafficking isn't an official act, trafficking and weapons isn't
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  Speaker 4: an official act, and therefore immunity doesn't extend to that
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  Speaker 4: type of contact, that type of criminal conduct. But I
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  Speaker 4: think at the end, what we're going to see is
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  Speaker 4: that there are a number of very complex legal issues
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  Speaker 4: that are going to be raised by Maduro's defense lawyers
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  Speaker 4: that are going to delay the jury trial for months
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  Speaker 4: and months to come.
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  Speaker 1: Yeah, and another thing, So Trump orders this operation to
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  Speaker 1: capture Maduro just a few weeks after he pardoned the
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  Speaker 1: former Honduran president Wan Orlando Hernandez, who'd been convicted in
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  Speaker 1: court on similar drug trafficking charges. So can the defense
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  Speaker 1: use that and argue perhaps elective prosecution.
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  Speaker 4: Well, I think it certainly undermines the president's claim that
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  Speaker 4: this was solely a law enforcement action, that the motivation
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  Speaker 4: was simply to bring to justice this president who was
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  Speaker 4: responsible for, you know, tons of illicit arcotics being trafficked
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  Speaker 4: in the United States. So I think that argument is
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  Speaker 4: hard to make when just a few months ago the
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  Speaker 4: president went ahead, I pardoned another former head of state
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  Speaker 4: who was criminally tried and prosecuted. The former president of
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  Speaker 4: Hunters was responsible for assisting aiding in a bedding conspiring
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  Speaker 4: to traffic in over I think four hundred tons of
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  Speaker 4: illicit narcotics in the United States. He received the forty
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  Speaker 4: five year sence, which certainly highlights the severity of his
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  Speaker 4: criminal conduct. His conviction was affirmed on a peel. He
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  Speaker 4: received due process. There's no claim that the trial, there
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  Speaker 4: was anything wrong with the trial, that he did not
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  Speaker 4: receive a fair trial. But yet the president pardon him.
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  Speaker 4: So what kind of evidence would justify pardoning such an individual.
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  Speaker 4: So I think that that undercuts the claim that this
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  Speaker 4: was just a legitimate criminal enforcement operation and really raises
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  Speaker 4: the issue, Well, then if that wasn't the true reason
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  Speaker 4: why the United States went into Venezuela, then what's the
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  Speaker 4: true reason? And then that raise of the question of oil.
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  Speaker 4: Was it just all about oil?
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  Speaker 3: At the end of the day, is.
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  Speaker 4: The law enforcement argument simply of FACAD a disguise for
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  Speaker 4: the real reason, which is to take control of Venezuela
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  Speaker 4: and boil reserves.
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  Speaker 1: It sounds like there's a lot of motion practice ahead.
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  Speaker 3: There may be.
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  Speaker 4: A serious question about whether this case actually goes to trial,
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  Speaker 4: and the reason being is that through criminal discovery there
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  Speaker 4: could be requests for discovery of evidence that perhaps is
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  Speaker 4: classified evidence, and under the Classified Information Procedures Act, the
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  Speaker 4: defendant has a right to evidence to support because or
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  Speaker 4: her defense, even if that evidence is classified. So that
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  Speaker 4: could be a really interesting question about balancing national security
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  Speaker 4: interests with respect to classified information and the defendant's interest
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  Speaker 4: in receiving a fair trial. If at the end of
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  Speaker 4: the day, the core concludes that the defendant's interest in
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  Speaker 4: receiving a fair trial, which is a constitutional right, supersedes
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  Speaker 4: the classified national security interests concerns, then the prosecution the
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  Speaker 4: problem is justice going to have to make a hard
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  Speaker 4: decision do we want to disclose that classified information? Is
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  Speaker 4: that going to be so harmful to national security that
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  Speaker 4: we would prefer to not go forward with the prosecution
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  Speaker 4: or offer try to resolve the case pursuant to a
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  Speaker 4: guilty plea based upon reduced charges, maybe a reduced sentence.
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  Speaker 4: So I think there's a serious issue kind of lurking
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  Speaker 4: out there in that regard.
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  Speaker 3: And then at the same.
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  Speaker 4: Time, I wonder whether any of the evidence to be
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  Speaker 4: used against Mother Goodo at trial was obtained pursuant to
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  Speaker 4: a electronic surveillance warrant under the Foreign Intelligence Surveillance Act.
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  Speaker 4: And if that's the case, then there could be sensive
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  Speaker 4: litigation on whether that evidence should be disclosed and whether
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  Speaker 4: that evidence was lawfully obtained pursuant to a lawful fis
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  Speaker 4: a wart and that could be another reason for the
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  Speaker 4: government willing to enter into a lesser guilty plea.
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  Speaker 1: Coming up next, what kind of evidence might be presented
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  Speaker 1: at trial? This is bloomberg. The US government's most consequential
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  Speaker 1: prosecution of a foreign head of state in decades kicked
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  Speaker 1: off Manhattan courtroom today. Ousted Venezuelan leader Nicholas Maduro and
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  Speaker 1: his wife pleaded not guilty to the charges against them.
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  Speaker 1: Maduro is facing charges of narco terrorism, conspiracy, cocaine importation, conspiracy,
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  Speaker 1: and possession of machine guns and destructive devices. Last month,
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  Speaker 1: President Trump pardoned another leader, former Honduran president Juan Orlando Hernandez,
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  Speaker 1: who'd been tried and convicted of similar charges and was
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  Speaker 1: serving a forty five year prison sentence. Here's Trump's explanation
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  Speaker 1: of that pardon.
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  Speaker 2: The man that I pardoned was, if you could equate
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  Speaker 2: it to us, he was treated like the Biden administration
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  Speaker 2: treated a man named Trump that didn't work out too
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  Speaker 2: well for them. This was a man who was persecuted
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  Speaker 2: very unfairly. He was the head of the country. He
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  Speaker 2: was persecuted very unfairly, and there are a number of them,
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  Speaker 2: and we felt that it was a very unfair situation
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  Speaker 2: that happened to him.
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  Speaker 1: I've been talking to a former federal prosecutor, Jimmy Garule,
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  Speaker 1: a professor at Notre Dame Law School. Jimmy tell us
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  Speaker 1: a little about the charges against Maduro and the similarity
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  Speaker 1: to the charges the Justice Department leveled against him during
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  Speaker 1: the first Trump administration in twenty twenty.
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  Speaker 4: They're very similar, and so again it's primarily kind of
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  Speaker 4: enabling drug trafficking, enabling drugs to be trafficked from Venezuela
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  Speaker 4: to the United States. So drug trafficking charges and then
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  Speaker 4: weapons trafficking related charges and basically the Madudo was part
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  Speaker 4: of a conspiracy with drug organization drug cartels to a
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  Speaker 4: traffic illicit drugs into the United States.
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  Speaker 1: It appears that some of the government's evidence against the
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  Speaker 1: Maduros includes recordings of DEA agents and relatives of Maduro,
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  Speaker 1: and also there may be cooperating witnesses because, for example,
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  Speaker 1: Venezuela's former military intelligence chief pleaded guilty to narco terrorism
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  Speaker 1: and drug trafficking charges in the case in June of
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  Speaker 1: twenty twenty five, and of Venezuela in general also pleaded guilty.
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  Speaker 1: Does it seem as if the government does have some
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  Speaker 1: strong evidence.
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  Speaker 4: Assuming that they do, this would not be the kind
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  Speaker 4: of case because it's such a high profile case the
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  Speaker 4: governments is want to ensure that it obtains the conviction
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  Speaker 4: against Maduro. I mean, the last thing the government would
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  Speaker 4: want would be for the jury to return a verdict
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  Speaker 4: of not guilty, you know, quitting the president Maduro. And
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  Speaker 4: so I suspect that there are members of the drug cartel,
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  Speaker 4: members of the drug conspiracy that are going to testify
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  Speaker 4: against Maduro. The question then is is that what promises
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  Speaker 4: were made to them in exchange for their cooperation, and
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  Speaker 4: under a very important Supreme Court decision called Brady versus Maryland,
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  Speaker 4: the US government has an obligation, a constitutional obligation, to
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  Speaker 4: disclose exculpatory material evidence, including impeachment evidence, of critical government witnesses.
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  Speaker 4: And so the government's going to have to disclose whatever
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  Speaker 4: deals they cut with these witnesses to testify at trial,
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  Speaker 4: and once that evidence is received by the defense, that's
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  Speaker 4: going to be used to impeach those witnesses at trial,
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  Speaker 4: and it could really undermine the credibility of their testimony.
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  Speaker 3: So that's another big issue.
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  Speaker 1: Yeah, I was wondering how difficult it would be to
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  Speaker 1: tie all this to Maduro. I mean, do they need
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  Speaker 1: direct orders from him? What kind of proof would they need.
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  Speaker 4: That's always a difficult challenge in drug conspiracy cases. It's
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  Speaker 4: easy to ensnare and prosecute and convict the lower level members,
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  Speaker 4: even mid level members of the drug conspiracy. It's much
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  Speaker 4: more difficult to prosecute the individuals that are at the
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  Speaker 4: top of the conspiracy. And the reason being is because
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  Speaker 4: they are so insulated. They're so insulated from specific drug transactions.
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  Speaker 4: They have people that are acting on behalf of the
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  Speaker 4: drug kingpins, and so it's very difficult to uncover direct evidence,
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  Speaker 4: direct evidence of the drug kingpins participation in the conspiracy.
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  Speaker 4: And so that's going to be another challenge that the
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  Speaker 4: Department of Justice is going to face in this prosecution.
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  Speaker 1: In a case like this, I mean, for a district
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  Speaker 1: court judge to say there's no jurisdiction here, let him go. Realistically,
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  Speaker 1: would it take a lot more than a normal, low
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  Speaker 1: profile case.
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  Speaker 4: I don't think any any federal district court judge is
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  Speaker 4: going to want to be criticized for doing that. You know,
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  Speaker 4: you dismissed the criminal charges against a former head of
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  Speaker 4: state who was charged with, you know, trafficking in large
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  Speaker 4: quantities of illicit rocotics.
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  Speaker 3: And then on top of.
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  Speaker 4: That, of course, there is a kind of a presumption
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  Speaker 4: here in favor. You know, so the courts traditionally grant
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  Speaker 4: substantial difference to the president, to the executive in the
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  Speaker 4: field of national security and foreign affairs, substantial difference. So
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  Speaker 4: that's the starting point, you know, that's the legal standard,
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  Speaker 4: that's the floor. We're going to give you great substantial
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  Speaker 4: difference with respect to the action taken. So it would
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  Speaker 4: have to be something very significant, very outrageous to kind
• 18:45
  Speaker 4: of overcome that that legal standard of substantial difference and
• 18:50
  Speaker 4: cause the court to intervene and dismiss the charges.
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  Speaker 1: Do you think it could be as long as a
• 18:54
  Speaker 1: year before this if there is a trial before this
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  Speaker 1: gets to trial, with all the preliminary mode and discovery.
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  Speaker 3: I think it's very realistic.
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  Speaker 4: I think it's very reasonable to assume that when we
• 19:06
  Speaker 4: start looking at this long list of potential pre trial
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  Speaker 4: motions that are going to be filed in this case,
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  Speaker 4: the complexity of those legal issues, the discovery that's going
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  Speaker 4: to be an issue in this case, I would not
• 19:20
  Speaker 4: be surprised if the trial date, the commencement of the
• 19:24
  Speaker 4: trial doesn't begin until sometime in twenty twenty seven.
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  Speaker 1: Do you see broader ramifications of this on international law
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  Speaker 1: in general?
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  Speaker 4: What does this part tend with respect to international law?
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  Speaker 4: What is the status of international law after this action
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  Speaker 4: taken by the president? I mean, is international law just
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  Speaker 4: something that the United States is going to dismiss whenever
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  Speaker 4: it chooses to do so, and raises a defense whenever
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  Speaker 4: it benefits the government, but otherwise it doesn't. It doesn't
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  Speaker 4: constitute any type of a legal deterrence, and it doesn't
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  Speaker 4: appear that international law, at least as the President Trump
• 20:11
  Speaker 4: sees it, is any deterrence to any action that the
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  Speaker 4: President seeks to take. I'm equally concerned about threats that
• 20:17
  Speaker 4: the president is making to other countries Greenland, Colombia, you know, Mexico,
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  Speaker 4: you know, implied threats, which really raised concerns about, again,
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  Speaker 4: what precedent this is setting for the future. So the
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  Speaker 4: president can do this, there are no consequences, there's no accountability,
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  Speaker 4: and then does that embolden him to engage in similar
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  Speaker 4: conduct against other countries that he has differences with. It's
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  Speaker 4: very unsettling, it's very disruptive to the region.
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  Speaker 1: Thanks so much for joining me today, Jimmy. That's professor
• 20:53
  Speaker 1: Jimmy Garul of Notre Dame Law School. The case against
• 20:58
  Speaker 1: ousted Venezuela and leader Nicholas Maduro promises to be an
• 21:02
  Speaker 1: extraordinary legal battle with major geopolitical ramifications. The middle of
• 21:08
  Speaker 1: the night military operation that captured Maduro comes after strikes
• 21:12
  Speaker 1: on Somalia, Nigeria, Syria, Iraq, Iran and in international waters
• 21:19
  Speaker 1: during Trump's second term, and President Trump indicated there's more
• 21:23
  Speaker 1: to come.
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  Speaker 2: Because we want to surround ourselves with good neighbors. We
• 21:26
  Speaker 2: want to surround ourselves with stability. We want to surround
• 21:30
  Speaker 2: ourself with energy. We have tremendous energy in that country.
• 21:34
  Speaker 2: It's very important that we protect it. We need that
• 21:36
  Speaker 2: for ourselves, we need that for the world, and we
• 21:38
  Speaker 2: want to make sure we can protect it.
• 21:40
  Speaker 1: Joining me now is an expert in international law, Jessica Peak,
• 21:44
  Speaker 1: director of the International and Comparative Law Program at UCLA
• 21:48
  Speaker 1: Law School. Jessica start by telling us whether you think
• 21:52
  Speaker 1: Maduro's capture violates international law.
• 21:57
  Speaker 5: Yes, and there is nothing under international law that will
• 22:00
  Speaker 5: allows a state to intervene in the territory of another
• 22:02
  Speaker 5: state to arrest anybody, let alone a sitting head of state.
• 22:07
  Speaker 5: And so I think we have a couple of different
• 22:10
  Speaker 5: significant international legal issues at play here with regard to
• 22:13
  Speaker 5: the US going into the territory and then capturing and
• 22:16
  Speaker 5: rendering Madurea. So the first is that this is really
• 22:20
  Speaker 5: a violation of the prohibition of the use of force
• 22:23
  Speaker 5: under Article two four of the UN Charter. This is
• 22:26
  Speaker 5: both a treaty prohibition and a customery international law norm.
• 22:30
  Speaker 5: And basically what we have here is a violation of
• 22:35
  Speaker 5: the unlawful use of force and the territorial integrity of
• 22:38
  Speaker 5: Venezuela by the United States, which can be considered an
• 22:41
  Speaker 5: act of aggression. The only way that such an intervention
• 22:45
  Speaker 5: could be legal, or the only couple of ways, is
• 22:47
  Speaker 5: first if there was a Security Council resolution authorizing the intervention.
• 22:52
  Speaker 5: We don't have that here. And then the second way
• 22:55
  Speaker 5: that the intervention could be legal if the Trump administration
• 22:58
  Speaker 5: was acting in self defense under Article fifty one of
• 23:01
  Speaker 5: the UN Charter. And that's a right that emerges in
• 23:04
  Speaker 5: response to an armed attack, So that would emerge if
• 23:07
  Speaker 5: the US had in some way been subject to an
• 23:10
  Speaker 5: armed attack by Venezuela. We do not have an armed
• 23:12
  Speaker 5: attack here, nor is there really any credible threat or
• 23:17
  Speaker 5: hint that there could have been a future attack by
• 23:20
  Speaker 5: Venezuela against the United States. So of those two potential
• 23:24
  Speaker 5: justifications for intervention, neither of them are valid or present here.
• 23:29
  Speaker 1: So I mean, what the United States has said, and
• 23:32
  Speaker 1: what Marco Rubio has said, is that this was not
• 23:35
  Speaker 1: an invasion, it was not a regime change. It was
• 23:38
  Speaker 1: simply an arrest operation. He said, it was a law
• 23:41
  Speaker 1: enforcement function to capture an indicted drug trafficker. Does that
• 23:47
  Speaker 1: support the United States position in any way.
• 23:50
  Speaker 5: No, I mean, there's nothing under international law that allows
• 23:54
  Speaker 5: for a domestic law enforcement operation to be enacted on
• 23:58
  Speaker 5: the territory of another state, just no legal basis for
• 24:01
  Speaker 5: that at all.
• 24:02
  Speaker 1: Are the US actions here similar to those in the
• 24:06
  Speaker 1: arrest of Noriega, Yes, So.
• 24:08
  Speaker 5: There's been some comparison between Noriega and Maduro's arrest, and
• 24:13
  Speaker 5: I think there is some factual similarities, certainly, but there
• 24:16
  Speaker 5: are also some significant differences. So Noriega's arrest followed the
• 24:20
  Speaker 5: nineteen eighty nine US invasion of Panama and led to
• 24:23
  Speaker 5: his extradition to the United States, and when he arrived
• 24:26
  Speaker 5: in the United States, he was indicted, tried, and convicted
• 24:29
  Speaker 5: for drug trafficking and money laundering, and ultimately served several
• 24:32
  Speaker 5: years in US federal prison. He was then extra dated
• 24:35
  Speaker 5: to France to face other charges, and eventually was returned
• 24:38
  Speaker 5: to Panama to serve his sentence there and face additional
• 24:41
  Speaker 5: charges in Panama. Anyway, in that case, the US alleged
• 24:45
  Speaker 5: that Noriega was an illegitimate leader and recognized the candidate
• 24:49
  Speaker 5: that Noriega claimed he had defeated in the election of
• 24:52
  Speaker 5: May of nineteen eighty nine, and in that invasion, Washington
• 24:56
  Speaker 5: emphasized that it was restoring democracy after Noriega had annulled
• 25:01
  Speaker 5: that election. It's very important to note in that instance
• 25:04
  Speaker 5: that the UN General Assembly condemned the US invasion of
• 25:07
  Speaker 5: Panama as a violation of international law, and in addition,
• 25:12
  Speaker 5: various human rights groups, both in the US but also internationally,
• 25:16
  Speaker 5: condemned that forcible extraction of Noriega by the US taking
• 25:20
  Speaker 5: him from Panama to the United States. The reason that
• 25:23
  Speaker 5: it is a bit factually different here is because the
• 25:27
  Speaker 5: US administration at that time was able to claim that
• 25:31
  Speaker 5: the new government had consented to Noriega's arrest and removal
• 25:35
  Speaker 5: in that manner. And so basically, after Noriega was brought
• 25:39
  Speaker 5: from the Panama to the US, the new government that
• 25:42
  Speaker 5: was installed in Panama was friendly to the US, and
• 25:46
  Speaker 5: so they weighed any objections to the circumstances of Noriega's extraction,
• 25:50
  Speaker 5: and that allowed the US to sort of retroactively say
• 25:53
  Speaker 5: that they had consent for those actions that were actually
• 25:56
  Speaker 5: in violation of international law. And because of that consent,
• 26:01
  Speaker 5: that retroactive consent, it quieted a lot of the criticism
• 26:05
  Speaker 5: that had come from the international community.
• 26:07
  Speaker 1: So here again, the US is claiming that Maduro was
• 26:11
  Speaker 1: an illegitimate president, that he wasn't elected properly. And it
• 26:16
  Speaker 1: seems as if the acting president who's been installed is cooperating,
• 26:22
  Speaker 1: shaw we say, with the with the US, complying with
• 26:25
  Speaker 1: the US. So is this likely to be another situation
• 26:29
  Speaker 1: where I mean, who's going to enforce the international law?
• 26:33
  Speaker 4: Right?
• 26:33
  Speaker 5: I mean, that's the big question. So we have Maduro
• 26:37
  Speaker 5: still claiming to be president. He was just in court
• 26:40
  Speaker 5: this morning, and you know, he said he had been kidnapped.
• 26:43
  Speaker 5: He said that he's still a legitimate president. We have
• 26:46
  Speaker 5: the vice president or the deputy president of Venezuela was
• 26:50
  Speaker 5: just sworn in, and because she is maintaining that she's
• 26:54
  Speaker 5: just there in an intraand capacity while Maduro remains president,
• 26:57
  Speaker 5: while he's here in the US, and so, you know,
• 27:00
  Speaker 5: certainly their line of argumentation is Maduro is a head
• 27:03
  Speaker 5: of state and he is entitled to head of state
• 27:05
  Speaker 5: immunity and therefore should not be prosecuted in the states
• 27:08
  Speaker 5: of the US. The US argument seems to be that
• 27:12
  Speaker 5: Maduro is a common criminal and doesn't deserve head of
• 27:15
  Speaker 5: state immunity. There's a few challenges to that. You know
• 27:17
  Speaker 5: Maduro has been recognized as the head of state by
• 27:20
  Speaker 5: the US, and the way that the US has interacted
• 27:22
  Speaker 5: with Maduro over the past year indicates that the US
• 27:26
  Speaker 5: was treating him as a head of state capacity, and
• 27:30
  Speaker 5: it's obviously quite convenient to now change the reasoning on
• 27:34
  Speaker 5: that now that he's in US custody. But I don't
• 27:37
  Speaker 5: think there's really many legitimate grounds to say that he
• 27:42
  Speaker 5: isn't entitled to that head of state immunity. I think
• 27:45
  Speaker 5: we're going to have a little bit of a conflict
• 27:46
  Speaker 5: here between international law and US law, because under international law,
• 27:51
  Speaker 5: the doctrine of head of state immunity, it shields sitting
• 27:54
  Speaker 5: presidents from arrest and prosecution. And this is really designed
• 27:57
  Speaker 5: to prevent this exact type of action. Is designed to
• 28:00
  Speaker 5: prevent third states from intervening in the domestic affairs of
• 28:04
  Speaker 5: another state by exercising any kind of jurisdiction overheads of
• 28:08
  Speaker 5: state and other senior leaders. This is a customary international
• 28:12
  Speaker 5: law obligation. The International Court of Justice has recognized head
• 28:17
  Speaker 5: of state immunity in the arrest Lawrance case back in
• 28:19
  Speaker 5: two thousand and two. But we have a US domestic
• 28:23
  Speaker 5: law doctrine called the Kurf Frisbee doctrine, which allows somebody
• 28:27
  Speaker 5: to face trial in the US court room regardless of
• 28:29
  Speaker 5: how they arrived here. So if Maduro was forcibly taken
• 28:33
  Speaker 5: in violation of international law, which he indeed seems to
• 28:36
  Speaker 5: have been taken in violation of international law, US courts
• 28:39
  Speaker 5: could still legally prosecute him on the US soil. And so,
• 28:43
  Speaker 5: you know, we don't know yet how the judge that
• 28:46
  Speaker 5: has been assigned the case will deal with this international
• 28:48
  Speaker 5: law doctrine of head of state immunity or whether you know,
• 28:53
  Speaker 5: the political preferences of the current Trump administration will be
• 28:57
  Speaker 5: weighed more heavily than the international law obligation.
• 29:01
  Speaker 1: So we've seen Russia go into Ukraine, We've seen the
• 29:05
  Speaker 1: war in Gaza. No one seems to be enforcing international law.
• 29:11
  Speaker 5: Yeah, I mean, it's a huge problem. And this is
• 29:15
  Speaker 5: really another example. And those two that you just mentioned
• 29:18
  Speaker 5: of Uko, Russia going into Ukraine, and Israel in Gaza,
• 29:22
  Speaker 5: these are all examples of the degradation of the international
• 29:25
  Speaker 5: legal system. The international legal system was really founded on
• 29:29
  Speaker 5: the principle of non intervention, and we are increasingly seeing
• 29:33
  Speaker 5: powerful states flouting that obligation with very few consequences, and
• 29:39
  Speaker 5: the reason that there are a few consequences is because
• 29:41
  Speaker 5: the way this international law system was set up is flawed,
• 29:46
  Speaker 5: and we can see that that is flawed. Now seventy
• 29:48
  Speaker 5: five years on, the UN Security Council is meeting to
• 29:52
  Speaker 5: discuss this situation. This meeting was requested by Columbia and
• 29:56
  Speaker 5: was backed by Russia and China, which is quite interesting
• 29:58
  Speaker 5: given the actions of Russia in Ukraine and potential future
• 30:02
  Speaker 5: actions of China in Taiwan. And the UN Security Council
• 30:07
  Speaker 5: is able to impose sanctions on countries to maintain international
• 30:10
  Speaker 5: peace and security, and that would include things like arms
• 30:13
  Speaker 5: embargoes or trade and travel restrictions. But and this is
• 30:17
  Speaker 5: a huge butt, the US is a permanent member of
• 30:20
  Speaker 5: the Security Council and as such has a veto power,
• 30:23
  Speaker 5: and so any action that the UN Security Council, or
• 30:25
  Speaker 5: any potential action talk of action, will immediately be vetoed
• 30:29
  Speaker 5: by the US. This is similar to what we've seen
• 30:32
  Speaker 5: in the case of Ukraine, where Russia, who is also
• 30:35
  Speaker 5: a permanent member, has been able to veto any action,
• 30:38
  Speaker 5: and the US has vetoed action against Israel over what
• 30:42
  Speaker 5: has been going on in Gaza. For the past few years.
• 30:45
  Speaker 5: A similar thing would happen if China were to do
• 30:48
  Speaker 5: a similar kind of action in Taiwan. China would also
• 30:51
  Speaker 5: have a veto power in the Security Council, And so
• 30:54
  Speaker 5: we're seeing these very powerful veto wielding states acting in
• 30:58
  Speaker 5: contravention of international law with really very few ways for
• 31:03
  Speaker 5: them to be meaningfully rained in. What we are seeing
• 31:07
  Speaker 5: and will continue to see is condemnation from other states,
• 31:11
  Speaker 5: you know, criticizing the US for this violation of international law.
• 31:15
  Speaker 5: But also there we're seeing that watered down too, because
• 31:20
  Speaker 5: many of those condemnations are coming alongside some level of
• 31:24
  Speaker 5: praise for the removal of Maduro, who has been an
• 31:27
  Speaker 5: authoritarian dictator who has treated his people terribly and has
• 31:32
  Speaker 5: led to horrific circumstances in Venezuela. And so we're not
• 31:36
  Speaker 5: seeing the full throated criticism of this action that I
• 31:42
  Speaker 5: would have liked to see, where states were really coming
• 31:44
  Speaker 5: out in favor of, you know, the status quo of
• 31:47
  Speaker 5: the international legal system being applied. One other thing to
• 31:51
  Speaker 5: say is, you know, we do have the United Nations
• 31:54
  Speaker 5: General Assembly, and we were talking earlier about the Noriega case,
• 31:58
  Speaker 5: and in that case, the UN Generalist Assembly did issue
• 32:01
  Speaker 5: a resolution that criticized the US for its violations of
• 32:05
  Speaker 5: international law for that invasion of Panamanian territory. So it's
• 32:09
  Speaker 5: possible that we might see a similar UN General Assembly
• 32:12
  Speaker 5: vote on a resolution to condemn the US actions here.
• 32:17
  Speaker 5: Usually UN General Assembly resolutions require a simple majority to pass,
• 32:21
  Speaker 5: but if it is an important question like the maintenance
• 32:24
  Speaker 5: of international peace and security and the question that we
• 32:27
  Speaker 5: have here, then a two thirds majority is required. So
• 32:30
  Speaker 5: if the UN General Assembly were brought together to vote
• 32:33
  Speaker 5: on this, it would require two thirds of states to
• 32:36
  Speaker 5: vote in favor of a resolution. Whether or not we'll
• 32:39
  Speaker 5: get that, who knows. I don't have a crystal ball
• 32:42
  Speaker 5: to see. I think though, if there is a UN
• 32:46
  Speaker 5: General Assembly vote and even you know, a simple majority
• 32:50
  Speaker 5: of states vote to condemn US action, that is quite powerful.
• 32:55
  Speaker 5: That is quite a powerful indication that the international community
• 32:59
  Speaker 5: is not just going to sit quietly while the US
• 33:03
  Speaker 5: violates a very fundamental bedrock principle of international law.
• 33:07
  Speaker 1: It seems that President Trump and Secretary of State Marco
• 33:11
  Speaker 1: Rubio are not concerned about that, because Trump gave a
• 33:15
  Speaker 1: warning to the Colombian president, and also there was talk
• 33:20
  Speaker 1: about Cuba and on Sunday he said he reiterated that
• 33:25
  Speaker 1: the US needs Greenland, so he seems to be broadening
• 33:29
  Speaker 1: rather than narrowing his focus.
• 33:32
  Speaker 5: He I mean, yes, absolutely, and I has been very
• 33:35
  Speaker 5: alarmed to see those kinds of statements being made about
• 33:38
  Speaker 5: Cuba and about Greenland. I mean, I think that that
• 33:42
  Speaker 5: is a symptom of the lack of condemnation for these
• 33:46
  Speaker 5: types of actions. It is really President Trump sort of
• 33:51
  Speaker 5: stretching his powers to say, well, I did it here
• 33:54
  Speaker 5: in Venezuela, and I'm going to continue doing it. And
• 33:56
  Speaker 5: Who's going to stop me? Which I think is a
• 33:57
  Speaker 5: super valid question. Who is going to stop him? It's
• 34:00
  Speaker 5: it's pretty unclear at this point. I think the question
• 34:03
  Speaker 5: of Greenland is going to be a very interesting one though,
• 34:06
  Speaker 5: because it's right on the doorstep of Europe. The Danish
• 34:08
  Speaker 5: Prime Minister has come out extremely strongly against all of
• 34:11
  Speaker 5: the saber rattling that has been happening around Greenland for
• 34:14
  Speaker 5: the past several months, and over the weekend, you know,
• 34:16
  Speaker 5: came out even more vocally against what the Trump administration
• 34:20
  Speaker 5: was saying. And you know, the US has no claim
• 34:23
  Speaker 5: to Greenland for reasons of US domestic national security, that
• 34:26
  Speaker 5: is just not how this works. And I think I've
• 34:29
  Speaker 5: seen mention of possible invocation of, you know, Article five
• 34:32
  Speaker 5: of the NATO Agreement, which would require all NATO member
• 34:36
  Speaker 5: states to resist any military intervention into a NATO member
• 34:41
  Speaker 5: That's obviously incredibly complex because the US is a NATO
• 34:44
  Speaker 5: member state. Although Trump has for many years been saying
• 34:47
  Speaker 5: we should pull back from NATO, and we've already sort
• 34:50
  Speaker 5: of rolled back some of our obligations there. So it
• 34:52
  Speaker 5: might be that Greenland is the stretch too far for this,
• 34:56
  Speaker 5: because I think there's a lot of other geopolitical issues
• 34:59
  Speaker 5: that that brings up, and that would impact more strongly
• 35:02
  Speaker 5: on some of our European allies if we're still calleda allies.
• 35:07
  Speaker 5: I mean, one thing that probably heard from other commentators too,
• 35:10
  Speaker 5: is that we can see the hypocrisy of this action
• 35:13
  Speaker 5: very clearly if we look at what happened with the
• 35:14
  Speaker 5: Honduran president, right he was extradited to the US on
• 35:19
  Speaker 5: very similar charges. He was tried and committed and sentenced
• 35:22
  Speaker 5: in the US to forty five years in prison. Just
• 35:25
  Speaker 5: last month, President Trump pardoned him for those actions. And
• 35:28
  Speaker 5: now we're trying to bring another case against another sitting
• 35:31
  Speaker 5: head of state for very similar behavior, and so it
• 35:35
  Speaker 5: just really shows, I think the hypocritical nature of the
• 35:38
  Speaker 5: Trump administration's action with regard to Maduro.
• 35:41
  Speaker 1: In this case, there's a long way to go here.
• 35:44
  Speaker 1: And thanks so much for joining me tonight. That's Jessica Peak,
• 35:47
  Speaker 1: director of the International and Comparative Law Program at UCLA
• 35:51
  Speaker 1: Law School. And that's it for this edition of the
• 35:54
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• 35:57
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• 36:00
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• 36:05
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• 36:09
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• 36:12
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