The prosecution will not be easy, analysts anticipate
More than three decades ago, the US government carried out the shocking arrest of the leader of a foreign country: Manuel Noriega of Panama. The dictator’s case can serve as a guide for prosecutors, defense lawyers and judges now involved in the case against Venezuela’s Nicolás Maduro.
Like Maduro, Noriega was accused of participating in a large-scale operation to traffic drugs into the United States. And Noriega was also captured in a military operation in his country.
Noriega’s lawyers quickly launched an aggressive defense of the military leader, accusing then-President George HW Bush’s Justice Department of violating international law and due process protections by invading Panama and arresting him abroad.
They also claimed that Noriega had immunity as a foreign head of state.
Maduro, who prosecutors say ran “state-sponsored gangs” and facilitated drug trafficking in Venezuela, “will likely raise a number of significant objections to the indictment,” like the ones Noriega attempted, predicts Steve Vladeck, a CNN legal analyst and professor at Georgetown University Law Center.
The case will likely involve “new constitutional and international law arguments” that could attract some high-profile criminal defense lawyers, adds CNN senior legal analyst Elie Honig. “In fact, we have seen very little like this.”
Noriega’s arguments were ultimately unsuccessful – he was tried and convicted in 1991, and was sentenced to 40 years in prison. (After his sentencing in 1992, a federal judge ruled that the former dictator was a prisoner of war and should have certain rights in prison, although judges cannot assign people to specific prison facilities and their ability to enforce such rulings may be limited.)
A critical factor in the failure of his defense was the fact that the US courts “refused to consider the legality of the invasion itself”, highlights Clark Neily, from think tank Cato Institute, in an article published on Saturday.
“Federal courts have held that the manner in which a defendant is brought into a U.S. court — even by force, even from foreign soil — does not nullify criminal jurisdiction,” Neily writes.
If Maduro tries to argue that he was brought to the United States illegally, there is case law that outlines why defendants can still be charged in the United States even if they were brought illegally.
If pressed to justify Maduro’s detention, prosecutors could invoke a 1989 memo from the Justice Department’s Office of Legal Counsel William Barr, which stated that a president had “inherent constitutional authority” to order the FBI to detain people in foreign countries, even if doing so violated international law.
Barr would later become attorney general in the Bush administration and the first Trump administration. His memorandum remains controversial among legal scholars.
“Maduro’s arguments that he is entitled to some type of immunity will be the most difficult for prosecutors to break,” considers Vladeck, “either because he was the ‘head of state’ of Venezuela or because, even if he wasn’t, all of his alleged crimes stem from official acts conducted with government authority.”
In Noriega’s case, the courts upheld the executive branch’s ruling that Noriega was not entitled to immunity and the “clearly illegal nature of the alleged acts.” This case, however, had an important difference – the State Department did not recognize Noriega as Panama’s leader.
It remains to be seen whether the courts will reconsider this precedent given Maduro’s status as president, although the Justice Department referred to him in the indictment unsealed on Saturday as the “de facto but illegitimate ruler” of Venezuela.
Ultimately, “the prosecution is not going to be easy,” concludes Vladeck. “Especially with regard to the accusations against Maduro himself.”
