My charge for this week was to offer an explainer on the Office of Legal Counsel memo justifying the Trump administration’s military action in Venezuela, code-named Operation ABSOLUTE RESOLVE. Having now read, and reread, the “memo” several times, I’m not entirely sure I can fulfill this task. The OLC opinion is largely incoherent – partly because it is heavily redacted, but mostly because the author, Assistant Attorney General T. Elliot Gaiser, struggles to sustain a legal argument for more than a couple of paragraphs without contradicting or undermining it. However, I will do my best, dear reader, to distill the basics.

First, a little background on Gaiser, just to set the baseline of what we are working with. According to Wikipedia, Gaiser went to Hillsdale College, and during his undergraduate years interned for The Heritage Foundation and Liberty Central, a political advocacy group founded by Ginny Thomas, wife of Supreme Court Justice Clarence Thomas. He was also a contributor to The Federalist, The Daily Caller, and RealClearPolitics (all conservative publications that have what I would call a relatively loose commitment to the truth). He then attended the University of Chicago Law School, and went on to be a law clerk for Judge Edith Jones (appointed by Reagan) on the Fifth Circuit, Judge Neomi Rao (appointed by Trump) on the D.C. Circuit, and Justice Samuel Alito on the Supreme Court. According to congressional testimony from Trump’s former press secretary, Kayleigh McEnany, Gaiser was involved in efforts to overturn the 2020 election, specifically in developing the legal arguments related to purported voter fraud in Pennsylvania. At his confirmation hearing for his current position, Senator Sheldon Whitehouse called him “completely unqualified” for the job. Which, of course. means he got it.

With that in mind, let’s turn to the legal arguments for Venezuela. I think the easiest way to break this down is to explain the legal frameworks that should govern the analysis, and then plug in what the OLC memo says (or seems to say) about it.

Let’s start with international law. Article 2(4) of the United Nations Charter – to which the U.S. is a signatory – states that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” To be clear, the U.N. Charter is a Senate-ratified treaty and therefore part of U.S. law under the Supremacy Clause of the Constitution. At least as a textual, if not practical, matter, when the President takes an oath to “preserve, protect, and defend” the Constitution – a requirement that is included in Article II itself – he is implicitly bound to carry out U.S. law, including treaties, whether he is exercising his constitutional role as Commander in Chief or fulfilling his duty to “take care that the laws be faithfully executed.”

The Constitution also divides war powers between the President and Congress. Congress can declare war, and the President can make war as the Commander in Chief. Although formal declarations of war have become more obsolete (the last time Congress officially “declared war” was in World War II), Congress does still authorize limited hostilities, as it did in Vietnam and after 9/11. Absent congressional authorization, it’s generally understood that the President has “defensive” war powers – that is, he can act to defend the United States from imminent attack. But in 1973, Congress passed the War Powers Resolution in order to rein in the President’s ability to unilaterally take the nation into war. The WPR requires that the President consult Congress prior to introducing the armed forces into hostilities and, once so introduced, to terminate the use of forces within 60 days unless Congress authorizes the action. (The WPR was passed over President Nixon’s veto and no president of either party has formally acknowledged its constitutionality, though they technically comply with its requirements.)

Not surprisingly, the executive branch has a different interpretation of the roles that international law and Congress play in the scope of presidential power. On the international law front (and relevant to the Venezuela operation), in 1989 then Assistant Attorney General of the OLC, William P. Barr, wrote an OLC opinion stating that the President has “inherent constitutional authority” under the Take Care Clause to deploy the FBI to arrest individuals who violate U.S. law, even if these actions contravene customary international law or what the opinion characterized as “unexecuted” treaty provisions like Article 2(4) of the U.N. Charter. (This opinion was written several months before the U.S. invaded Panama.) Another OLC opinion in 2018 concluded that the executive branch does not need congressional approval when the unilateral use of force is 1) in the “national interest”; and 2) does not amount to “war in the constitutional sense.” Apart from this, there is some gray area on what constitutes “hostilities” under the WPR, with the executive branch taking the position in 2011 (with regard to airstrikes in Libya) that this threshold requires “boots on the ground” and a risk of escalation that could result in U.S. casualties.

You with me? OK, so now let me try to unpack the OLC memo. 

First, it appears that Mr. Gaiser can’t decide whether ABSOLUTE RESOLVE is a use of force under international law at all. At the outset, Gaiser states unequivocally that “the proposed operation will constitute an armed conflict under international law,” citing Art. 2(4) of the U.N. charter. Three paragraphs later, the memo states, “To be clear, we have not reached a definitive conclusion about how international law would apply to ABSOLUTE RESOLVE.” He then reverts back, stating that “the operation will be governed by the laws of armed conflict – on both sides.” Several pages later, the memo refers to Maduro’s extraction as an “abduction that is a use of force under international law.” Gaiser then helpfully observes that “either there is a treaty that prohibits that use of force or there isn’t.” The immediate next sentence is “here there is not,” citing a footnote that is entirely redacted. (N.B.: the U.N. charter is a treaty.) So does international law apply to Maduro’s abduction? Yes, maybe, and no. Who knows! 

Whatever the answer to that question, the memo randomly asserts on p. 7 that “international law…does not restrict the president as a matter of domestic law.” So…ok. Let’s turn to domestic law. 

Here the memo seems to want to hang its hat on the 1989 Barr memo, characterizing Maduro’s capture as an “extraterritorial arrest.” Indeed, the conclusion that international law doesn’t restrict the president cites to that OLC opinion. But Gaiser (to his credit, I guess) can’t get past the fact that this “law enforcement operation” requires significant military resistance, specifically because “U.S. forces will face significant resistance on the approach.” The opinion therefore characterizes ABSOLUTE RESOLVE as a “hybrid operation” to be analyzed under the 2011 OLC memo’s two-part test for unilateral exercise of war powers. Here is where Gaiser (unwittingly) makes a damning case for the administration.

First, Gaiser undermines any claim that the U.S. was acting in a self-defense capacity, which would make it justified under both international law and the Constitution. In fact, the capture of Manuel Noriega in Panama, which the administration has pointed to as precedent for Venezuela, was predicated on the threats to U.S. citizens and personnel in the country. (The U.N. still objected to that action as a violation of Art. 2.) By contrast, Gaiser’s analysis notes that “we have not been provided intelligence that [Maduro will use his weapons] to attack the United States.” The memo also states unequivocally that Maduro’s actions in Venezuela “do not constitute an imminent threat to U.S. forces.” Finally, it observes that Venezuela’s aggressive actions in the region “would not be sufficient to justify an attack on Venezuela itself.” Hmm. Noted.

Second, the OLC memo explicitly concedes that “the proposed operation involves the type of forces most likely to require congressional approval: boots on the ground.” In other words, Gaiser acknowledges that ABSOLUTE RESOLVE constitutes “hostilities” for purposes of the War Powers Resolution even as defined by the executive branch – which would at the very least require consultation from Congress before the action. The opinion goes on to note that the U.S. may incur casualties, though it concludes that “it is unlikely even the full loss of the strike force [!] would amount to the type of sustained casualties that would amount to a constitutional war.” In other words, the administration knew there was the potential for U.S. casualties and Congress should have known about it before it happened.

Finally – and this is the kicker – the memo basically concedes that its entire analysis rests on factual assumptions that could prove false. Specifically, in assessing whether ABSOLUTE RESOLVE might constitute “war in the constitutional sense” because it might lead to war, the memo states, “We were further assured that there is no contingency plan that would involve using U.S. forces occupying Venezuela should the removal of Maduro result in civil unrest in that country.” Oops! The memo further notes that even if “time may disprove the wisdom of predictions without rendering them false or unreasonable at the time they were made,” leading the United States into war without congressional approval would be unconstitutional, and that “[i]f the President does not have authority for his actions, he cannot cloak his subordinates with the authority to engage in them.” This, to me, amounts to a concession that if the underlying assumptions on which the memo is based are wrong, the military servicemembers who participated in ABSOLUTE RESOLVE were arguably following illegal orders.

In my National Security Law class, I have my students read the so-called “torture memos” written by John Yoo and Jay Bybee so that they can understand legal sophistry – i.e., clever and seemingly persuasive arguments that don’t provide an accurate statement of the law. One thing that I realize now, though, is that in every earlier presidential administration, there was at least an attempt to argue that the President’s actions were within the bounds of the law. Gaiser’s incomprehensible memo on Venezuela reveals that we are well beyond that phase – the job of the OLC now is just to slap some legal-sounding words on paper, even if they don’t make sense. After all, who is going to bother reading it?