Why Nicolás Maduro’s Arrest Is Legal and His Immunity Claim Is Dead Wrong – He Will Face Justice

In a stunning recent operation in Venezuela, U.S. forces captured Nicolás Maduro, the strong-arm dictator of Venezuela. They brought him to the U.S. to face charges of narco-terrorism, conspiracy to import cocaine, and machine gun-related offences. On January 3 at approximately 1:00 a.m., U.S. forces entered the presidential palace in Caracas and had Maduro in U.S. custody within hours. By 4:30 p.m. of the same day, Maduro had landed in the U.S. and was transported to Manhattan to await justice.

Simply put, Maduro was a narco-terrorist responsible for drugs and the deaths of countless Americans. Previous Administrations talked a big game, but failed to act. Charges against Maduro were first brought in 2020. Rewards for information that led to the capture of Maduro also began in 2020, and it increased throughout the first Trump Administration, the Biden Administration, and now the second Trump Administration. Now, U.S. Attorneys have brought a fresh set of indictments in the Federal District Court for the Southern District of New York.

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The method of Maduro’s capture will not affect whether he stands trial in the U.S. Nor will his claim that he is Venezuela’s head of state provide him immunity. Through the Ker-Frisbie Doctrine and United States v. Noriega, it is clear that foreign nationals cannot evade justice in U.S. courts by contesting the method of their capture or contradicting the U.S. government’s non-recognition of a foreign head of state.

The Ker-Frisbie Doctrine comes from two Supreme Court cases: Ker v. Illinois, 119 U.S. 436 (1886), and Frisbie v. Collins, 342 U.S. 519 (1952). In Ker v. Illinois, a man challenged his criminal conviction in Illinois by claiming he was kidnapped from Lima, Peru, and brought to court in Illinois illegally. The American man who arrested him, Henry G. Julian, was directed to coordinate with Peruvian authorities, but on meeting Ker, arrested him on the spot and “forcibly and with violence” brought him to Illinois. Ker claimed that this action meant the Illinois court had no jurisdiction.

The U.S. Supreme Court held that a “forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.” In other words, if the court has a right to try a case, how the defendant was brought to the court does not matter.

In Frisbie v. Collins, the Court stated that “[t]here is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” The Federal Kidnapping Act also did not bar “a state from prosecuting persons wrongfully brought to it by its officers.” Taken together, the Ker-Frisbie Doctrine forbids challenging the jurisdiction of the court or constitutional due process “on the grounds that [the defendant’s] presence before the Court was unlawfully secured.”

Another potential issue is that generally heads of state enjoy absolute immunity while in office. They cannot be prosecuted by another nation-state. But what about a head of state whose authority the U.S. government does not recognize as legitimate? The famous case of Panamanian leader Manuel Noriega during the U.S. invasion of Panama in 1989 addresses the capture of a contested head of state.

In United States v. Noriega,the U.S. Court of Appeals for the 11th Circuit addressed the question of whether his “head-of-state immunity” applied in a U.S. court when the U.S. Department of State did not recognize him as head of state in Panama. Regarding Noriega, “the Executive Branch ha[d] manifested its clear sentiment that Noriega should be denied head-of-state immunity” under the applicable federal statutes. Under U.S. law, the Executive has the power to recognize heads of state, and the courts generally follow that determination. Therefore, Noriega was not protected by head-of-state immunity from prosecution in the U.S.

So, what of Maduro? The Ker-Frisbie Doctrine is clear. Seizing him in the middle of the night from his compound does not prevent him from standing trial in a court that has jurisdiction over him when there are valid federal charges brought against him in federal court. In short, our courts have the right to try Maduro.

And his head-of-state immunity? Non-existent – at least in U.S. courts. The U.S. State Department explained that despite Maduro’s claim of “victory” in Venezuela’s 2024 elections,“[s]ince 2019, more than 50 countries, including the United States, have refused to recognize Maduro as Venezuela’s head of state.” As such, the State Department has a long-standing, bipartisan policy of not recognizing Maduro as Venezuela’s legitimate head of state. He cannot claim immunity on that ground.

Now it is up to the courts to faithfully fulfil their duty to examine evidence and determine innocence or guilt for Maduro. This time, he cannot dodge justice.