The Trump Administration’s Theory of Constitutional War Powers: “The President Could Decide”

President Donald Trump has launched another unlawful war, this time in the service of regime change in Iran. The administration has been threatening the use of force for weeks, but provided very little public justification, description of what the president hoped to accomplish, or explanation for how the use of force would effectuate such goals. It has also to date presented no legal justification whatsoever. Much of what we know at this moment about how the administration views, and how it lawyers, questions of war powers can be derived from the one legal memorandum the administration has released on the use of force in a very different context, in which it sought to justify the recent use of force against Venezuela and its head of state. 

The Office of Legal Counsel (OLC) in the Department of Justice, whose legal advice is considered binding on the executive branch, is often asked to provide written guidance when the president deploys the U.S. military to use force without congressional authorization. This is especially important when the use of military force or the legal theory for doing so is novel. This past fall, OLC reportedly weighed in on at least two extraordinary sets of military operations: the strikes on suspected drug traffickers at sea and the Venezuela strikes and accompanying capture and detention of its head of state, Nicolás Maduro and his wife, Cilia Flores. The administration has yet to release its legal opinion purporting to justify the boat strikes. But in a surprising move, it released the OLC memorandum justifying the Venezuela conflict almost immediately. That memo provides significant insight into the administration’s lawyering, decision-making process, and the factual evidence undergirding both.

Three points stand out: 

• First, the memo leans heavily into presidential determinations on both facts and law. Unlike prior memoranda by that office, this OLC does not determine or decide whether the operation passes constitutional muster; it merely lays out the arguments and leaves this determination for the president.
• Second, the memo undermines the most important facts this administration has itself claimed regarding Maduro and other purported groups it alleges have been attacking the United States. These concessions are relevant not only for this operation but for other actions the administration is undertaking, such as its boat strikes campaign and the Alien Enemies Act deportations currently being litigated. 
• Third, the memo disclaims the UN Charter–which prohibits the use of force outside of very narrow exceptions such as self defense–as relevant for its legal analysis, claiming that it is not binding on the president, at least in this context. But the authors nevertheless undermine any justification for the use of force as a matter of international law, specifically undercutting any self-defense rationale. 

Before we dive in, a note of caution. Quite apart from the redactions, many sections of this memo are so confusingly written that it can be difficult to follow the legal analysis. The memo regularly and inexplicably threads together different bodies of law, weaving in and out of them seemingly at random. It confuses the law governing the use of force with the law governing the conduct of hostilities. It conflates concerns about criminal liability for personnel with the constitutional separation of powers. It poses hypotheticals throughout, such as “critics may say” statements that are framed as counterarguments but at places that are inapposite to the surrounding legal questions. As a result, in order to address the office’s legal theories fairly, the reader must first dig deep and with real generosity to draw out the potential legal arguments from this thicket.

As a whole, one reads this memo with the sense that the lawyers easily could have written the guidance the other way, as a recommendation that the proposed course of action was legally unavailable. The memo repeatedly provides evidence and arguments that support a conclusion of illegality. In crafting the memo as justification, the authors remove themselves from the place of decider. The memo itself does not find that the president has authority because the operation is not “war in the constitutional sense,” (the standard OLC has set for when the president may use force without congressional authorization); rather it states that the president “likely could conclude that the operation falls short of war in the constitutional sense.” So too, the memo makes clear that the facts might not suggest it—in fact the evidence the authors have provided contradicts it—but Maduro could be described as the leader of a supposed drug trafficking group. Ultimately, the most the authors are willing to state is that the president could “make the determinations necessary to order ABSOLUTE RESOLVE.”

Concessions on Law and Fact in the Memo

One of the most remarkable aspects of this memo is its concessions, on both law and fact. OLC repeatedly concedes how little factual support (or worse, contradictory evidence) the authors have received to support the assertions the administration has made and the actions the lawyers are being asked to justify as a matter of law. 

Concession 1: OLC was not provided evidence that Maduro was directing drug trafficking toward the United States

In one especially notable concession, the memo acknowledges that the lawyers have seen no evidence for one of the administration’s most significant claims in a related context – the claim that the president may invoke the Alien Enemies Act to detain and deport certain Venezuelans without process because the then-head of state, Nicolas Maduro, purportedly had been directing a criminal gang, Tren de Aragua (TDA), to “invade” the United States through drug trafficking operations. Instead, the memo reveals that the evidence the OLC lawyers have been given suggests the opposite of what the administration has been claiming both in and out of court. 

Specifically, the memo highlights one of the claims in the indictment against Maduro: “that he both leads the CDLS”—an acronym for Cartel de los Soles, an alleged ill-defined enterprise of high-ranking purportedly corrupt Venezuelan officials—“and has directed a debilitating effort to flood the U.S. market with narcotics.” The memo asserts that Maduro “has been assessed to be one of a cadre who run CDLS and could be described as its de facto leader.” Those emphases are mine, and the passive voice is important here. Who has assessed this? Not the U.S. intelligence community who, the memo adds “has had difficulty corroborating reports that Maduro personally directs this activity.” (We already know from a published National Intelligence Council Memorandum that, the president’s orders to the contrary, the intelligence community had advised the president that “the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations within the United States.”) In fact, the OLC memo itself notes in the associated footnote that neither of the only sources cited for the claim that Maduro “could be described as [the] de facto leader” of CDLS, both of them reports from the Drug Enforcement Administration (DEA), include Maduro in the list of important CDLS members. Moreover,OLC notes that one of the two specifically identifies someone else as their purported leader. 

OLC’s acknowledgement of its utter lack of evidence on these points undermines the administration’s claim, undergirding both this operation and its campaign of deportations under the Alien Enemies Act, that Maduro was directing TDA and through it drug trafficking into the United States.   

Concession 2: OLC was not provided evidence that Maduro was“directly participating” in or “facilitating” a conflict with administration-named “DTOs,” or was involved in an attack on the United States

Elsewhere, the memo paints a contrast between the specific allegations Maduro is facing with respect to creating an armed conflict and the actual evidence provided to the OLC lawyers. On page 9: “Maduro is factually accused of directly participating [in]—or, at a minimum, facilitating” some nondescript armed conflict between so-called designated terrorist organizations (“DTOs”) and the United States. And yet, the memo acknowledges:

“True, the intelligence provided to us is somewhat contradictory about how closely Maduro is tied to that conflict, meaning that we probably could not target him directly for a lethal strike outside of the paradigm of the law of armed conflict.”

Here the memo makes both a factual concession (we do not have evidence tying Maduro to an armed conflict with these groups) and a legal one, asserting implicitly that Maduro is not involved in operations that would themselves give rise to a legal claim of self-defense—in other words, he is neither involved in nor planning an armed attack on the United States. 

Concession 3: OLC has no evidence of weapons being used to attack the United States

The memo nods toward a mostly redacted suggestion of ominous weapons shipments involving Iran and Venezuela, on page 10. And then it immediately acknowledges, “we have not been provided intelligence that the weapons will imminently be used to attack the United States.”  In fact, the memo implicitly recognizes that it is Venezuela, not the United States, that would have the right to use force should it come under attack, which is the clear plan at the heart of the memo: “like the United States, Venezuela has an inherent right of self-defense.”

Concession 4: Any regional instability that the memo might point to in justification for the use of force is caused by the United States

The memo points to prior precedents suggesting that regional instability has been a factor in U.S. decisions to use force, but immediately acknowledges that in this case, the instability is caused by the United States itself. 

At one point the memo suggests in an astoundingly circular train of logic that the regional instability the United States could cause by embarking on a failed law enforcement operation is itself a legal justification for using the U.S. military to undertake it. As support for this proposition they point to the 2018 Syria strikes memo, which addressed actual instability in Syria and the broader region caused by the leader of that state itself, who was attacking his people with chemical weapons, not theoretical instability caused by the United States own use of force.

So too, the memo points at page 13 to Maduro’s “series of aggressive actions ranging from buzzing American naval vessels to placing troops on the border with Colombia.” But it first acknowledges that these activities are in direct response to “the U.S. navy [] shifting resources to the theater in order to conduct [redacted — likely the name of an operation].”

Concession 5: The memo acknowledges that Maduro posed no threat to the United States

In discussing Maduro’s response above to U.S. naval operations, the memo concedes that Maduro nevertheless posed no real threat to the United States. “We have not assessed this threat as sufficient to justify a military attack on Venezuela itself, as military commanders have not advised us that Maduro’s actions are a direct or imminent threat to U.S. forces.”

Again, this is a mixed concession of fact and law. The memo authors acknowledge that they have been given no evidence of a real threat – let alone an armed attack or imminent one – coming from Maduro. The legal consequence is that the United States would lack a self-defense argument; there is simply no armed attack or imminent armed attack to which the United States could legally respond. 

Concession 6: The U.S. operation is a use of force

Perhaps the most important legal concession the memo makes is the acknowledgement that the proposed U.S. operation would constitute a use of force. While it is self-evident that either airstrikes or ground troops capturing a head of state—not to mention both—would constitute a per se use of force, it is nevertheless a notable admission from the U.S. government. In public statements, administration officials had seemed to take pains to avoid acknowledging a “use of force” in their rhetoric surrounding the operation—leaning heavily into the suggestion that this was somehow merely law enforcement. And the United States has yet to make any attempt to justify the use of force against Venezuela as a matter of international law.  That leads directly to the next concession:

Concession 7: The Dog That does not Bark

The memo’s most significant factual concession is what it does not say.

There is no suggestion in the memo of an armed attack or imminent armed attack that might otherwise justify the use of force in self-defense. Instead, as noted above, the memo states the opposite on page 13: 

“We have not assessed this threat as sufficient to justify an attack on Venezuela itself, as military commanders have not advised us that Maduro’s actions are a direct or imminent threat to U.S. forces.” 

If there were any evidence that might justify the use of force by the United States in this context, one must assume that the memo would include reference to it, even obliquely if the information itself were redacted. Certainly the memo would not under such circumstances categorically exclude the existence of a threat sufficient to justify an attack.  The language that the memo deploys instead suggests quite emphatically that the lawyers are aware of no such evidence.

The Memo’s War Powers Analysis

Historically, the primary purpose of an OLC memo addressing a president’s novel or important use of force absent congressional authorization is the analysis of his ability to do so unilaterally, as a matter of his Article II power.

OLC has over time developed a test for such presidential war powers that traces its specifics to a 1994 OLC opinion addressing the president’s power to deploy U.S. forces to Haiti with some ex ante Congressional acquiescence but without an actual authorization or declaration of war. The 1994 opinion first established that the proposed deployment was not contrary to the will of the sitting Congress, and then ensured that it satisfied the War Powers Resolution. Finally, the opinion announced the standard that has become the OLC test for unilateral presidential power: “after examining the circumstances, nature, scope, and duration of the anticipated deployment, [OLC must] determine[] that it was not a ‘war’ in the constitutional sense.”

This threshold—“war in the constitutional sense”—stems from the Constitution’s explicit grant of the power to “declare war” to Congress. If only Congress can declare war, the theory goes, the president cannot claim power that rises to that threshold. It is another leap to then assert that the president can claim power that does not rise to that threshold. And another still to hold that he alone—or with the aid of executive branch lawyers—makes that determination. This is the OLC view, which a former head of that office has called “the promiscuously permissive OLC understanding of Article II of the Constitution.” It has never been ratified by the courts or Congress; nor has it been aggressively challenged by them either.

There is one other prong of the OLC theory that has developed alongside the nature, scope, and duration test: the president’s proposed action must be in the “national interest.” Scholars (including a previous head of OLC) have explained just how little constraint is posed by the “national interest” prong one of the test, and more pointedly stating that “OLC is almost certainly not in a position to second-guess presidential claims about the national interest.” Nevertheless, the memo authors take some pains to locate one. It is quite possible that there is a direct relationship here between the administration’s need to explain the national interest prong and the lack of an obvious national interest to the casual observer. 

Prong 1 of the OLC War Powers Test: National Interest

In seeking to locate a national interest, the memo first conflates this prong one question with the antecedent question of whether the president has statutory authority (which, if he had, would obviate the need for this exercise).

On that question of statutory authority, the memo flails a bit to locate authority for the president to use military force to support its purported “law enforcement operation” for what it terms the “extraordinary rendition” of Maduro. The memo first looks on page 8 to statutes designed for the purposes of transporting terrorist suspects, but notes that Maduro has not in fact been charged with such crimes. The authors realize they cannot locate a statutory basis for the operation, and must instead look to the president’s unilateral Article II authorities. Yet, they acknowledge on page 9, they can find “no established, independent test for the president’s use of the military in support of law enforcement abroad under a pure Article II theory.”

If one can pull out an argument for national interest from the memo, it appears to be that Maduro’s crimes are severe, that he is likely to resist arrest, that force might be necessary to protect civilians from Maduro, and that a law enforcement mission to capture him would fail without assistance from the military. 

No sooner does the memo put forward these assertions for national interest than it undermines each. First, the memo acknowledges that mere criminal law enforcement has never before supported a constitutional basis to use force to kidnap a foreign leader in another state’s sovereign territory. Second, the memo undercuts the “severe” allegations with the many concessions discussed above and suggests any threat Maduro posed to the United States had been inflated. And the authors note that any risk to U.S. officials and any instability that might otherwise be used to support an operation would be caused by the United States itself.

Prong 2 of the OLC War Powers Test: Nature, Scope and Duration

The second prong of the OLC war powers test—does the nature, scope, and duration of the proposed operation suggest it will rise to the level of “war in a constitutional sense”—typically does the most work in these analyses in recent years. OLC attorneys will typically look at a number of factors, including the type of deployment (is this a ground invasion or airstrikes?), the status of the opposing party (a nation state, or a non-state actor?), the risk of casualties, the potential for escalation, and how long the hostilities are likely to last. 

The memo opens the analysis with an understated check mark against the operation: “To start, the proposed operation involves the type of forces most likely to require congressional approval: boots on the ground.” This is “not dispositive,” the memo notes, but OLC has “consistently treated the need to involve American ground forces as fundamentally different in kind than airstrikes…” 

The reason “boots on the ground” tend to suggest “war,” the memo states, not inaccurately, is twofold. First, U.S. forces on foreign soil pose a real risk of escalation, which is a regular factor OLC analyzes under this test. Second, and not unrelated, U.S. forces could be difficult to extract under such circumstances. OLC has regularly cited both of those factors as weighing in favor of needing congressional approval. One overarching objective and lesson from history is to avoid putting Congress in a situation in which it is “confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed.” (See OLC’s 2011 Libya memo, citing its 1995 Bosnia memo). 

The Venezuela memo simply notes these problems; it does not resolve them.

A prior Trump administration OLC, citing the office’s own precedent, had specifically noted the greater need for congressional approval for the deployment of ground troops in its 2018 opinion on Trump’s Syria strikes. That memo expressed that “[t]he deployment of ground troops ‘is an essentially different, and more problematic, type of intervention,’ given ‘the difficulties of disengaging ground forces from situations of conflict, and the attendant risk that hostilities will escalate.’” Analyzing prior opinions, the 2018 opinion found that OLC had previously justified force in cases where ground troops had been deployed, when “extensive or sustained hostilities” were not expected. As those prior operations involved peacekeeping or other humanitarian relief, there was a risk the troops might encounter violence or hostilities; it was not the intention of the operation. Such scenarios are inapposite to the case at hand, where the United States engaged in a bombing campaign of a country and deployed ground forces in order to forcibly capture its leader, fully expecting armed opposition. 

The memo notes that the planned “preparatory bombardment” on Venezuela alone might have weighed in favor of a “war” determination.  In fact, in the Haiti opinion on which the memo relies heavily, OLC noted that the fact it did not involve “preparatory bombardment” was “relevant to the judgment that it was not a ‘war.’” 

In order to distinguish the case at hand, the Venezuela memo leans on the Libya airstrikes OLC had approved in 2011, by which standard this operation “falls well-short.” In the Libya case, however, OLC had specifically noted that the “bombardment” was not made “in anticipation of a ground invasion,” like that of Haiti, a factor it found salient.  In other words, OLC authorized one operation as not amounting to “war” because it involved ground troops without a bombardment.  And it authorized another as not amounting to “war” because it involved bombardment without ground troops.  In both cases, the lack of the other feature was seen as critical.

For the Venezuela operation, OLC has simply cherry-picked the powers suggested by the other two and ignored the constraints.  

As a side note, the Libya OLC memo also leaned heavily on the United States’ role in supporting the U.N. Security Council resolution that had called for force to protect civilians in Libya. Such a resolution would have been dispositive to an international law analysis; its work in the constitutional war powers analysis is less obvious. Nevertheless, there was no such resolution in place authorizing an operation to use force in Venezuela or depose Maduro.

The Venezuela memo then addresses the likelihood of U.S. casualties. The prospect of U.S. casualties is a critical indicator—both for OLC and as a simple matter of common sense and history—that Congress should play a determinant role in the use of force. Nevertheless, the memo found it “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.” For context, the strike force involved over 150 military aircraft as well as soldiers from Delta Force, a U.S. Army special operations force.  The OLC memo notes that U.S. forces would face “significant resistance,” including “as many as 75 anti-aircraft battery sites along the approach route.” 

The memo makes no effort to explain why the potential for significant U.S. casualties does not suggest a need for Congressional involvement. It states only this: “By way of comparison, the United States suffered 40,934 casualties during the Vietnam War.” This is an odd point. It was precisely the enormous losses of the Vietnam War and Congress’s bipartisan sense that it had been dragged along with insufficient information or opportunity to stop the carnage that compelled Congress to pass the War Powers Resolution in order to reset the balance and rein in the president’s unilateral use of force. Surely, there is no question that Congress would need to authorize an operation where such casualties were a possibility. There is also no reason whatsoever to think the threshold for “war” should be anywhere near the prolonged conflict in Vietnam or casualties at that level.

The memo acknowledges yet another point that factors against the president here. Past memoranda have favorably noted the absence of a regime change goal as an element in favor of the “not war” analysis, because such a goal suggests open-ended conflict. Here, OLC notes that regime change is an “inevitable” result of the operation. (This is itself interesting given Secretary Hegseth’s and Rubio’s denials on this point.) Again, the memo points to Haiti, where—while U.S. forces in fact arrived in conjunction with a negotiated settlement—the United States had joined a UN Security Council-authorized multinational force prepared to use force to reinstate a democratically elected leader.

Finally—the memo arrives at what the authors call “the most difficult part of the analysis.” Will the proposed operation “lead to war,” whether because of “significant loss of U.S. servicemembers” or because the U.S. action leaves Venezuela in a state of “civil unrest.” The question is critical. And prior OLCs have considered the likelihood of escalation to be a key factor in determining whether congressional approval would be necessary. 

Past OLCs have relied on an objective assessment of the risks of escalation of any planned military operation. This OLC takes a different approach. It notes that the lawyers asked about the possibility that significant U.S. losses might compel policymakers to respond. And it notes the possibility that the operation could cause civil unrest in Venezuela. But neither of these factors must weigh in the analysis, according to the memo, because lawyers were “assured” that there was no contingency plan in place to address either scenario. 

There was no contingency plan for casualties, no contingency plan for wreaking havoc. This is a stark admission in itself. And it is the legal hook on which the OLC memo hangs its analysis.  With no concrete contingency plan, there is no plan that would constitute “constitutional war,” and thus there is no risk of constitutional war, so the theory goes. One wonders what work “risk of escalation” does at all if such is the analysis. 

This logic does not follow from OLC precedent. In fact, prior OLCs had considered planning important to the question of whether U.S. forces were sufficiently prepared to ensure limited casualties, or that a conflict not escalate. The 2018 Trump administration OLC explicitly addressed the military’s planning, and weighed favorably both its plans “to minimize casualties, further demonstrating the limited nature of the operation” and “several measures that had been taken to reduce the risk of escalation by Syria or Russia.” There, planning was a positive.  The objective of minimizing risk weighed in favor of force, not against it.

Prior memos treated planning similarly. The Haiti opinion on which this memo heavily relies noted that Congress had required the president to make a finding that the operation “will be undertaken only after an exit strategy for ending the deployment has been identified,” and that the president had done so and reported these findings to Congress.

In the Venezuela context, one perceives that planning would have been a net negative in the legal analysis, because it would have had to take account of the real risk of escalation. The lack of a plan enabled the lawyers to look the other way. There is no plan for war, hence there can be no war. 

It is difficult to miss the unfortunate incentive structure this legal analysis introduces for policymakers. Do not make contingency plans, the lawyers imply, lest the plan itself acknowledge the genuine risk of escalation. We have arrived at the “not war by virtue of not planning” theory of constitutional war powers.

In any event, the most significant problem with the war powers analysis is one that the memo does not address. As discussed below, the operation is a clear violation of the UN Charter, an Article II treaty made with the advice and consent of the Senate and ratified by the president’s hand on behalf of the United States. Article II requires that the president take care that the law be faithfully executed. It is not a grant of power for him to violate it.

The Memo’s Discussion of International Law

The opinion’s discussion of international law is notable both for the dismissal of its relevance, and for the analysis and concessions on some of its particulars. One important piece is worth noting up front: while acknowledging that the operation is a use of force, the memo makes no attempt to justify it as a matter of international law. In fact, the authors cannot do so. They had been provided no evidence to suggest the operation was necessary as a matter of self-defense to an armed attack, actual or imminent, which would be the only legal justification for the use of force in these circumstances. The publicly released portions of the memo do not explicitly state that the operation is illegal as a matter of international law, but the clear inference is that the authors understand it to be so.

Dismissal of International Law as Binding on the President

First and most important, the memo entirely disclaims the relevance of international law to the president’s domestic authorities or constraints. It states, “We do not reach the question because it is unnecessary to address the issue you raise: that is, ‘[iJnternational law … does not restrict the president as a matter of domestic law,’ when it comes to extraordinary rendition.” (citing OLC memoranda). Ryan Goodman has written an excellent piece dissecting this point and rejecting the conclusion on two grounds: first its conflation of judicial enforceability with the question whether a treaty binds the president; and second on the president’s constitutional duty to take care that the law, including treaties, be faithfully executed. 

Recognition of the Use of Force with no Attempt to Justify as Self-Defense

Having attempted to brush off international law as irrelevant, the memo nevertheless dives into the weeds. First, as discussed above, the memo repeatedly recognizes that the proposed operation would be a use of force. This is notable both because the administration had in public statements seemed to try to avoid such characterization, and because, as the memo recognizes, international law as enshrined in the UN Charter prohibits the use of force against other nations. It permits two narrow exceptions: a UN Security Council Resolution (UNSCR), not a factor here, or self-defense against an armed attack. Yet the memo makes no attempt whatsoever to suggest a self-defense justification (likely because it is so clear that none is available). In fact, as discussed above, the memo explicitly disavows a potential self-defense justification. 

The OLC memo does not state—and the authors claim not to have “reached a definitive conclusion”—that the operation would violate the Charter, but the dots are simple enough to connect. States may only use force if doing so is consistent with an UNSCR or in self-defense. The operation would be (and was) a use of force against Venezuela. Because there is no self-defense justification, the use of force against Venezuela violates the UN Charter. There is no other justification under international law. 

The only hint of argument comes in two citations: one to an article by Ashley Deeks on the Unwilling or Unable test and another to a hornbook’s discussion of “valid consent.” On the first, Deeks’ article analyzes the controversial use of force by states in self-defense against armed attacks by non-state actors on the territory of another country when that country is “unable or unwilling” to mitigate the threat themselves. In the Venezuela case there has been no armed attack on the United States. Nothing in the unable or unwilling theory would provide justification for this operation. 

The brief nod toward the concept of “consent” is notable, and it suggests there might have been internal discussion of an argument that the United States was operating under the “consent” of a legitimate government, not the one in power under Maduro. A military operation that genuinely has the consent of the territorial state is not a “use of force against the territorial integrity” of that state, and therefore would not violate the Charter. But the memo makes no effort to draw this argument out, and in fact there is no evidence to support the notion that this could be an accurate characterization of the facts. Whether politically recognized or not, Maduro was the de facto sitting head of state in effective control of the country. There is no legal jujitsu that can undo that, and the memo does not attempt it, outside of this meager citation.

Notably, “use of force” is a term of art under both international law—the UN Charter prohibits the use of force against other states outside of very narrow exceptions not applicable here—and domestic law enforcement. At many points the memo appears to conflate these to very different bodies of law. See page 13 where it discusses how the use of force might be justified were Maduro engaging in armed resistance to capture within the United States. This is mixing apples and oranges. Of course, Venezuela, as a sovereign state, has the right to use force to repel an armed attack from the United States on or within its borders, which it attempted to do. Maduro has no similar claim to use force within the United States, and the memo does not claim he has done so.  This is simply an inapposite hypothetical.

Recognition of an International Armed Conflict and the Applicability of Jus in Bello

The memo also recognizes that the operation would create an international armed conflict, thus triggering the law of armed conflict. Oddly, in doing so it conflates two distinct bodies of international law: jus in bello and jus ad bellum. The memo states, correctly, that “the proposed operation will constitute an armed conflict under international law,” but as support for this it cites the UN Charter rule that “Members shall refrain in their international relations from the threat or use of force against the territorial or political independence of any state.” This is a conflation of the law governing the conduct of hostilities, which the memo correctly notes is triggered here by the existence of an armed conflict, and the law governing when states may use force, enshrined in particular in the UN Charter. 

The memo bounces back and forth between these two bodies of law, jus in bello and jus ad bellum, over several paragraphs. The law governing the use of force as enshrined in the UN Charter places a high bar on when states may lawfully use force. It is this prohibition on the use of force that the operation has clearly violated, without even an attempt to justify the act as a matter of self-defense. But regardless of the legality of that use of force, any hostilities between two state states’ militaries (or in fact between one state’s military and another’s civilian population) will create an armed conflict sufficient to trigger the law of armed conflict. The memo’s conflation of the two is particularly confusing given that the memo next cites the ICRC commentary for the correct proposition.

Scattered Discussion of the Law of Armed Conflict

Interestingly, despite dismissing international law—and specifically the UN Charter—as binding on the president, the memo does assert the necessity of compliance with jus in bello, the law governing the conduct of hostilities. This is likely because OLC precedent proposing a “public authority exception” for military operations is narrowly cabined to include only acts that are lawful under the law of armed conflict. 

Unfortunately, this concession provides little comfort. The few specific details the memo addresses suggest a perversion of the law of armed conflict. Charlie Trumbull and Michael Schmitt have well dismantled the memo’s offhand suggestion that civilians “assisting in war-sustaining activities” are “directly participating in hostilities” and that they may be directly targeted as such. The short answer is, targeting war-sustaining activities (such as oil fields or cotton other production that may fund and thus indirectly support the state’s war efforts) is itself highly controversial. But under no circumstances are civilians assisting such activities “directly participating in hostilities.” They may not be targeted as such.

The memo’s statement on civilians assisting war-sustaining activities comes as part of an almost casual aside defending the legality of the administration’s boat strikes on criminal suspects, calling them “members of non-state armed groups.” However, the boat strikes—which involve the targeted killing of individuals suspected of trafficking drugs on behalf of various and often unnamed or ill-defined “groups”—cannot be justified under any theory of international law. There has been no armed attack on the United States, and drug trafficking is neither an armed attack nor hostilities. None of the amorphous entities the Administration has cited are organized armed groups engaged in protracted active hostilities with the United States. There is no armed conflict. These are, at worst, criminal suspects. U.S. law does not support the death penalty for their alleged crimes, even if they were tried with due process of law, which they have not been. And international law does not permit the targeted killing of mere criminal suspects except under extreme necessity, such as individual self-defense against imminent death or serious bodily injury. There is no such claim here; these are strikes from the sky. The boat strikes are simply extrajudicial killings. Under U.S. law, they are murder.

Conclusion

The Venezuela OLC memo is as remarkable for what it inadvertently reveals as it is for what it explicitly attempts to justify. It provides glimpses into the government’s arguments in other contexts, such as the administration’s campaign of summary executions at sea. It demonstrates just how little evidence the administration’s lawyers are able to garner from their colleagues to justify the administration’s operations. It undermines the administration’s own factual and legal assertions in other ongoing matters, most notably the Alien Enemies Act litigation. And it makes no attempt to claim self-defense in order to justify the use of force against Venezuela as a matter of international law.

On the question of the president’s constitutional war powers, however, I add one note of caution in this critique. I have written before that certain features of OLC memoranda justifying the use of force risk creating a ratcheting up effect in claims to presidential power. In particular, the fact that such memoranda typically memorialize the yesses and not the nos, and the practice of addressing factors that weigh for or against without laying out clear redlines, means that each subsequent memo might build on the last in a one-way ever-expanding direction. This particular memo cherry picks shamelessly from prior precedents. But the decades of OLC memoranda authorizing force in new ways, each assembling the factors from prior tests without ever laying out specific limits, provide fertile ground for such cherry picking. Does this mean that a different OLC would have reached the same conclusion? That counterfactual is for now impossible to know. They most likely would have made fewer concessions. And they certainly would have written a clearer analysis. 

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