| When he announced that the U.S. had captured Nicolas Maduro in Caracas, after drones, airplanes, and helicopters disabled Venezuela’s air defense systems, President Donald Trump’s justification for the action was partly based on his assertion that “Venezuela unilaterally seized and sold American oil, American assets and American platforms, costing us billions and billions of dollars.” He thereafter claimed to be running Venezuela and controlling its oil production and the profits from that production. That leaves us with the question: Who is the thief in this situation? | | Theft, of course, is intentionally taking or controlling the property of another without consent or legal authority and with the intent to convert it to the taker’s use. Coercion of the owner or owner’s surrogate to surrender property or its control does not, of course, amount to consent. This leads to the questions of whether Venezuela stole the oil production properties cited by Mr. Trump and whether his plans for Venezuelan oil production equal theft. | | The 5th Amendment to our Constitution adopts the principle that government has the authority to take property for a public use so long as the taking uses an impartial judicial proceeding and the owner is it paid just compensation. That concept is also a principle of international law recognized by various treaties to which the U.S. is a party. Thus, Venezuela had a recognized legal right to expropriate oil extraction equipment and refineries when it did so almost 20 years ago, and the owners of those properties are entitled to just compensation for that taking. Some of those claimants were U.S. companies; others were not. (The equitable owners of the two major U.S. oil companies involved in Venezuela’s expropriation undoubtedly included many non-U.S. citizens or residents.) As is customary in such expropriations, and as recognized by U.S. treaties and laws, disputes regarding the amount of compensation owed were submitted to international commercial arbitration tribunals that assessed the damages for the major U.S. claimants at approximately $14 billion, though some reports indicate that the total value of the lost properties of all such claimants may ultimately be closer to $40 billion. (The alternative to submitting to international commercial arbitration tribunals is for the U.S. government to negotiate a comprehensive settlement with the expropriating government, in which case claimants file their claims with the U.S. Foreign Claims Settlement Commission, but there has not been such a settlement between the U.S. and Venezuela.) | | Chapter 22, section 1650a of the U.S. Code provides that the awards of international commercial arbitration tribunals are enforced by the federal courts “as if the award were a final judgment of a court of general jurisdiction of one of the several States.” Enforcement of an unpaid civil judgment in our federal courts is initiated by petitioning for judicial execution against the judgment debtor’s assets. Thus, those who have judgments against Venezuela can seek judicial execution against property held by that government within the jurisdiction of the United States. This could include property aboard U.S. flag vessels and, arguably, property aboard unflagged vessels. (I leave to military law experts the question of whether our military can lawfully make such seizures from non-U.S. flag vessels on the high seas.) The claimants can also seek the assistance of foreign courts in executing against properties that are within their jurisdiction. However, none of the procedures for collecting a judgment provide for seizure and liquidation of property by utilizing U.S. military power on U.S. or foreign soil. | | Moreover, while the Constitution designates the President as the commander in chief of the armed forces, Article I § 8 ¶ 14 grants Congress the authority “to make rules for the government and regulation of” those forces. Congress exercised that power in 10 U.S.C. § 275, which prohibits “direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.” Congress not only has not provided the required authorization of military force or the threat thereof to execute a civil judgment by seizing or controlling property owned by a foreign government on its own soil, but it has also made it clear that such military intervention is not available with respect to Venezuela. Thus, while chapter 22 of the U.S. Code specifies a number of ways to help restore freedom and property to Venezuelans, it states at § 9762 that none of these provisions “may be construed as an authorization for the use of military force.” | | Therefore, Venezuela’s 2007 expropriation of foreign-owned oil-producing property was not theft and, hence, does not justify the military incursions into that country. In contrast, President Trump’s threats of further military action aimed at imposing control over its oil production constitute a threat of theft and violation of Congress’s rules for the use of U.S. military forces. | | Has the time not come for Congress to adopt a resolution that assures the world that we are not seeking to become an imperial power, that we are a nation that respects the rule of law, and that we do not bend to the impulses of a President who speaks of peace and economic growth but fails to understand that neither can be achieved in an environment that is destabilized by personal whims? |
|
Have friends who like law? Forward this email. 
Like Verdict for legal discussions on Facebook. 
Follow @verdictjustia for news and updates on Twitter. 
