I went to a secure room to read the classified arguments presented by the President’s Office of Legal Counsel (OLC) for why the invasion of Caracas, the capture of Nicholas Maduro early this month, and the ongoing blockade of Venezuela is not a war.
Whether or not we are at war, and whether or not the Constitution authorizes ONLY Congress to initiate war, would seem to be questions that the public should be privy to. But the powers that be classified these legal apologies for war to prevent open and public debate.
Just minutes later at the GOP caucus lunch, an assistant attorney general presented the OLC’s rationale for why the invasion and extrajudicial rendition of Maduro was not a war. To my astonishment, virtually all the contents of the “classified” OLC memo that I’d been told not to discuss were then discussed in a non-classified briefing.
I thanked him for his extensive discussion of the “classified” document, as his public remarks allow me to publicly comment on his remarks. So much for the ridiculous over-classification racket.
To analyze the OLC’s arguments, you have to understand why those attorneys who would aggrandize the executive branch work for the president, not the public, and always have and always will. Advocates for constitutional requirement for congressional authorization for war BEFORE hostilities take place have never been and will never be a member of the OLC.
To get some perspective on what biases the OLC may have, realize that they are well-trained, high-achieving lawyers hired because they support an expansive notion of executive power.
For example, in the “secret” OLC memorandum there is no discussion of the Constitution’s directive that Congress alone is granted the power to declare war.
The memorandum simply argues that the invasion of Venezuela and the ensuing blockade are not war. Why? Because enough casualties have not occurred… Really? Apparently, they believe that a “constitutional” war exists only if a lot of people die. How many? Not exactly clear, but I think the 50,000 or so that died in Vietnam might qualify.
My question to the assistant attorney general was, “If Congress is supposed to declare war and we can only know it’s really a ‘war’ after we add up the casualties, wouldn’t that be a little late to vote on declaring or initiating war?”
He assured me that it would be apparent when the U.S. was involved in a “real” war by the nature, scope, and duration of the intervention. I responded that Congress could not possibly wait until a war had revealed its nature, scope, and duration to vote on whether or not our nation should launch it. In response, he added that the OLC looks at the intentions of the policy makers to determine whether the “kinetic action” might evolve into a war. Hmmm.
Another senator asked about the difference between a “quarantine” and a “blockade.” He was assured that a blockade is not hostilities. Oh, ok. And by the by, the U.S. is only seizing ships that are sanctioned (not mentioned is that our government increased sanctions on Venezuelan oil trade, so a significant amount of their tankers are being seized). But, according to the weird logic of the OLC, the action in Venezuela does not amount to hostilities; it’s simply law enforcement.
Supposedly, the bombing of Caracas, the capture of Maduro, and the complete blockade of Venezuela do not constitute a war but rather just another routine drug arrest. The argument goes that a grand jury indicted Maduro for breaking U.S. laws on drugs and machine guns.
Inquiring minds might ask what type of world might result if the norm becomes that we can arrest foreign leaders for allegedly breaking domestic U.S. laws.
Will they present evidence of Maduro on the phone negotiating the price of a few kilos of cocaine with a drug dealer in the U.S.? I doubt it. More likely, the government will convict Maduro of conspiracy to commit some action without actual evidence of whether he actually committed the crime.
You see, the allegations of drug crimes are a farce put forward to support the notion that invading a nation’s capital and removing its president is not a war but, rather, a criminal arrest.
Half the Senate last week voted for a War Powers Resolution saying that the president must cease the war with Venezuela unless Congress authorizes such a war.
One GOP senator argued that the Resolution would prevent the continued blockade of Venezuela. I responded: “Yes, unless of course, Congress decided to authorize the blockade.” Many will argue that Maduro was evil, that socialism caused unbelievable privation in Venezuela, or that the military operations went seamlessly. All true. But none of that narrative overcomes the constitutional requirement for Congress to declare war.
The debate is important for many reasons: Because our president continues to argue that he may still introduce troops into Venezuela and that he doesn’t need congressional authorization to do so. Because the military blockade could continue for years and cost billions of dollars. Because our president continues to argue that he may use military force to take Greenland, or Colombia, or Cuba.
Only Congress can ensure none of that happens.
Some in the GOP caucus argue that even if the Venezuelan invasion was a war, it’s over now. But even the most vocal supporters of virtually limitless Article II presidential war powers caution that the president should take note—a military takeover of Greenland is a bridge too far, even if it only takes a ROTC unit to accomplish it.
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