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.

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