The U.S. attack on Venezuela on Jan. 3, while shocking, followed a familiar U.S. government playbook developed post-9/11. Successive presidents expanded executive power by declaring the existence of a war against terrorists; denying privileges or obligations to their opponents in this war; and diversifying targets while claiming self-defense against all. There is a straight line from the post-9/11 national security framework to the capture of Venezuelan President Nicolás Maduro.

Operation Southern Spear encapsulates the legal chaos generated by executives seeking to maximize power since 2001. Under the law of war, the White House (without congressional consultation or approval) actually initiated an armed conflict with Venezuela through an act of aggression that could constitute an international crime.

The U.S. attack on Venezuela on Jan. 3, while shocking, followed a familiar U.S. government playbook developed post-9/11. Successive presidents expanded executive power by declaring the existence of a war against terrorists; denying privileges or obligations to their opponents in this war; and diversifying targets while claiming self-defense against all. There is a straight line from the post-9/11 national security framework to the capture of Venezuelan President Nicolás Maduro.

Operation Southern Spear encapsulates the legal chaos generated by executives seeking to maximize power since 2001. Under the law of war, the White House (without congressional consultation or approval) actually initiated an armed conflict with Venezuela through an act of aggression that could constitute an international crime.

Now displaying breathtaking opportunism to escape censure for acting without Congress, the Trump administration claims that the Maduro snatch was just a “law enforcement operation” conducted by the military. To complete the legal turmoil, upon presentation in court, Maduro said he was a prisoner of war and entitled to all attendant rights and privileges.

The declaration of war for political purposes after the unprecedented 9/11 attacks anticipated the legal confusion over Maduro’s capture today. Terrorism and war are traditionally governed by very different legal regimes. There is no internationally recognized definition for terrorism because, as the old adage goes, “one man’s terrorist is another man’s freedom fighter.”

Instead, states prohibit acts of terrorism under domestic criminal law. That’s very different from the established law of war. The law of war is contained primarily in the 1949 Geneva Conventions and their protocols, which codified rules of engagement that most of the international community had recognized for hundreds of years and included explicit safeguards for detainees and civilians following the brutality of World War II. The law of war legalizes targeting and killing enemy combatants (traditionally, the opposing military or militias) and allows for proportionate civilian collateral damage when necessary to attain a military goal. Yet combatants in war also have special privileges in detention, including immunity from prosecution for lawful killing, protection from mistreatment, and access to the International Committee of the Red Cross. States have traditionally been loath to grant such privileges and immunities to those they consider to be terrorists, so terrorists were never considered to be combatants in a war before 9/11.

Additionally, the law of war does not allow for a nonstate actor such as al Qaeda to unilaterally declare war against a state; states alone have the power to start wars by declaration or armed attack. Armed groups do engage in violence against state forces, of course, and the state may respond in self-defense, but there are

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