The recent disclosure by the United States Department of Justice (DOJ) of a memorandum assessing the legality of Operation Absolute Resolve provides a window into the legal rationale underpinning the military action that led to the capture of Venezuelan President Nicolás Maduro. This memorandum, heavily redacted yet revealing in its intent, asserts that the President holds the constitutional authority to order such an operation, which was initiated on January 3, 2026. The DOJ’s release aims at transparency amid ongoing discussions on executive military powers.
Conceived under the guidance of Assistant Attorney General Elliot Gaiser from the DOJ’s Office of Legal Counsel (OLC), the December 2025 memo critically relies on the OLC’s historical framework for evaluating presidential authority in military engagements. This framework includes evaluating whether the action serves vital national interests and whether the scale of the operation amounts to “war” as defined by the U.S. Constitution. In consideration of these parameters, several factors were highlighted that support the military intervention. These factors encompass the severity of Maduro’s alleged criminal activities, intelligence on weapons and cartel activities, threats to regional stability, and the humanitarian crisis within Venezuela.
The analysis draws parallels with historical U.S. military actions in regions like Haiti and Kosovo, suggesting that Operation Absolute Resolve aligns with historical precedents of presidential authority. By this criterion, the action does not constitute “war” and thus bypasses the need for congressional approval. However, the memo clarifies that under international law, the use of force qualifies as an “armed conflict” and remains subjected to International Humanitarian Law (IHL). This includes adherence to principles like proportionality in military attacks and the mandate to distinguish between combatants and civilians.
In addition, the memo discusses the potential prosecution of Maduro should the operation be adjudged beyond presidential authority. Citing the U.S. Supreme Court’s 1992 ruling in U.S. v. Alvarez-Machain, it affirms that even an unlawful or extraterritorial seizure does not inherently strip U.S. courts of jurisdiction. The principle of “male captus bene detentus” is underscored, establishing that a wrongfully captured individual can still be lawfully detained and tried, thus reinforcing prosecutorial jurisdiction.
The memorandum also touches on the legal exposure for U.S. military personnel if the operation were deemed unlawful. It indicates that the public authority doctrine would likely shield these individuals, suggesting they acted within the scope of their duties. Nonetheless, it advises caution, noting that the boundaries of such protections are not fully delineated.
This disclosure comes amid broader geopolitical tensions, with its timing coinciding with developments in Venezuela and beyond. Notably, the U.N. had denounced the U.S. action as aggression, allegedly breaching the U.N. Charter. Meanwhile, declarations from international entities, such as statements from Iran’s Supreme Leader Ayatollah Ali Khamenei and Greenland leaders, highlight the operation’s ramifications. More insights can be found through the report on JURIST.