The Gangster’s Brief: The Barr Doctrine, Noriega and Maduro

US President Donald Trump might leave an impression of violent novelty, at least for the leader of a nominal liberal democracy, soiling international relations with the gangster’s touch.  This sense of iconoclasm is misplaced.  While his conduct regarding the abduction of Nicolás Maduro certainly dumps mightily on the precepts of international law, legal advisors in the US government have been constructing, with a mixture of deviousness and disingenuousness, the rationale for just that very thing over decades.  Ditto the justifications for torture that will forever blight the administration of George W. Bush, and theories that elevate the presidential office above the scrutiny of Congressional and courts.

During his tenure as Assistant Attorney General between 1989 and 1990, when he led the Department of Justice Office of Legal Counsel, William J. Barr, who went on to serve as Attorney General twice, wrote classified memoranda that amounted to something of a doctrine, and a nasty one at that.  Legitimising the abduction of the troublesome General Manuel Noriega and the US invasion of Panama in 1989, the doctrine is inherently undemocratic, more in keeping with the blood girdled traditions of Nazi jurisprudence than the enlightened jottings of Thomas Paine.  But its product is also axiomatic to the exercise of imperial power which, as it grows, becomes less accountable and more erratic.  When the US ceased to be a small, manageable republic along the lines of Montesquieu’s ideal state, enlarging its borders through purchase, dispossession and conquest, the centralisation of power made the executive hungry and rebellious.  This culminated in what Arthur M. Schlesinger, Jr. called in 1973 the Imperial Presidency, a system of rule contemptuous of constitutionalism in embracing “a conception of presidential power so spacious and peremptory as to imply a radical transformation of the traditional polity.”

The documents in question have been made available at the peerless National Security Archive.  Research fellow Arturo Jimenez-Bacardi, in discussing them, makes the case that they disclose a “Barr Doctrine”, one that asserts the “inherent constitutional authority” of the President to conduct foreign policy on a unilateral footing, be it using military force, authorising covert actions, or law enforcement operations.

In June 1989, Barr opined in a memorandum to the Attorney General that the President, when acting through the Attorney General, “has the inherent constitutional authority to deploy the FBI to investigate and arrest individuals for violating United States law even if those actions contravene customary international law.”  Law enforcement operations of an extraterritorial nature “authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations Charter.”  Furthermore, an arrest breaching international law did not violate the Fourth Amendment [prohibiting unreasonable searches and seizures], nor did such an arrest “abridge the Fourth Amendment.”  In these words, the imperial brute, cold to international custom and hot to instinctive violence, can be discerned.

In November, Barr’s legal meditations again made an appearance, this time on the extraterritorial effect of the Posse Comitatus Act of 1878.  Despite the Act barring the deployment of the military in the name of law enforcement, it had “no relevance to law enforcement efforts conducted outside the territory of the United States” and was applicable only to the relationship between the military and “domestic civil authority”.  Barr engages in various lexical contortions to find that, in the absence of any clear stipulation on extraterritorial effect, “the Act has a strongly domestic orientation.”

A still classified OLC opinion by Barr is said to outline the rationale for overthrowing a foreign government even if it resulted in the death of the head of state at the hands of coup plotters or rebels.  This is alluded to by Jonathan Fredman, who worked as a lawyer for the Central Intelligence Agency during the operation against Noriega.  Writing for the CIA’s in-house journal Studies in Intelligence, Fredman mentions a classified legal opinion from the Justice Department “examining whether the provision of US support to a planned coup against a repressive regime would necessarily violate the E.O. [Executive Order 12333 barring assassination] if there was no specific intent to kill the foreign leader but the plotters contemplated the use of force and the likelihood of violence were great.”  Barr, in keeping with his other memoranda, was in the mood to please his superiors: Executive Order 12333 “would not necessarily preclude the US from assisting in such a plan but cautioned that the legality of any particular proposal has to be evaluated on its own merits.”

The parallels with Maduro’s fate are chilling and unavoidable, and it is clear that Barr’s ideas were used with gratitude by the current Assistant Attorney General T. Elliot Gaiser.  Regarding whether a President “may lawfully order military personnel to assist law enforcement in forcibly removing Maduro from Venezuela to the United States for prosecution”, Gaiser’s answer submitted on December 23, 2025 was reassuring to the Trump administration.  Such extraordinary rendition, an act nothing less than kidnapping, “would not endanger any subsequent US prosecution.”  The President could unilaterally authorise such operations, “as the amount of force involved serves important national interests and involves a use of force that he could reasonably conclude does not rise to the level of war in a constitutional sense.”  When done in the name of national interests, the crime vanishes.

Gaiser offers a mild qualification to the sweep of his opinion in noting that a “definitive conclusion about how international law would apply to ABSOLUTE RESOLVE” had not been reached.  But this was not deemed necessary given existing OLC precedents, with Barr’s views being instrumental on this subject.

In interviews with various outlets explaining the rationale for Maduro’s abduction, Barr reiterated the view “that this kind of action, targeted action to deal with a particular threat, is within the discretion of the president.”  While congress had the authority to declare war, “responding to particular threats, using force, is something that historically virtually all presidents have done.”

American political culture remains legal and incurably sanctimonious.  It’s encased in a carapace of rhetoric that professes an appreciation of international rules when convenient, and their execration, when otherwise.  As Barr’s life in the Justice Department shows, there are always legal courtiers at hand to offer briefs and explanations to their presidential overlords explaining why might is supremely right, while international law and restraints on imperial power is the stuff of effete sissies.

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