Due Process Cannot Begin with Force Alone, Nor Be Certified in a Cage

The United States’ strength has never been only its power. It has also been the credibility of its legal claims, its restraint, and its willingness to explain itself.

Recent reporting concerning the seizure and transfer of Venezuelan leader Nicolás Maduro to New York for prosecution raises questions that go beyond any single defendant. These questions concern coherence: whether a state can maintain the integrity of due process when the method by which it acquires custody, and the conditions in which it holds that person, appear misaligned with the legal posture it later adopts.

This is not a plea for sympathy. It is a request for consistency.

I. Due process is a system, not a stage

In constitutional democracies, due process is often reduced to a checklist of courtroom rights. Counsel, hearings, trial safeguards, judicial procedure. These protections are essential, but they are not the whole doctrine.

Due process also restrains the exercise of state power before a defendant ever enters a courtroom. It speaks to the legitimacy of how custody is obtained and how liberty is deprived. It is not merely about whether a judge later presides over orderly proceedings, but whether the state’s actions remain lawful and intelligible from first contact to final disposition.

A system can provide procedural regularity after custody is secured and still degrade the rule of law if the acquisition of custody, and the deprivation of liberty that follows, are treated as morally and legally collateral.

II. A trial later does not cleanse questionable custody now

If public reporting is accurate, the circumstances of Maduro’s capture and transfer have become a subject of international dispute, including arguments that the operation violated foundational norms of sovereignty and international law. That matters because the rule of law is not simply what happens after the state achieves physical control.

If law restrains power only after power succeeds, then law becomes performative. It becomes an aesthetic applied to the aftermath of force.

A government that claims lawful authority should be prepared to articulate the lawful basis for the manner in which custody was obtained. When the state’s posture becomes functionally “the court need not consider how,” it is not defending the rule of law. It is defending jurisdiction by fait accompli.

This is not a demand for impunity. It is a demand for consistency: the same civilization that insists on legal process for the accused must insist on legal process for itself.

III. Definitions must match posture

States face genuine security dilemmas. There are moments when wartime logics intrude on civilian order. But that is precisely when definitions matter most.

If a state’s conduct resembles wartime action, it should be prepared to explain why it is nonetheless choosing a civilian criminal posture. If the action is justified as law enforcement, then the means must reflect that theory consistently.

The tension here is not simply the seriousness of allegations, but the mismatch between an extraordinary method of obtaining custody and an ordinary courtroom framework used to legitimate what preceded it. That mismatch invites the argument that “procedural regularity” is being used to launder unresolved questions about power.

A rule-of-law state anticipates this critique. It does not dismiss it.

IV. Confinement conditions are part of due process, not a footnote to it

Due process governs deprivation of liberty. Pretrial detention is deprivation of liberty. Therefore, the conditions of detention are not incidental. They are part of the state action.

If a defendant is detained pretrial under conditions widely reported as unsafe, degrading, or structurally deficient, then the state is not merely “holding” him. The state is imposing punishment-like suffering before conviction, even if unintentionally, and even if justified as administrative necessity.

A legal system cannot coherently say both of the following at once: that it is following due process, and that the conditions of confinement are barbaric but irrelevant to legitimacy.

That is a contradiction. Due process is not only the right to be heard in court. It is also the principle that the state’s deprivation of liberty must be lawful in form and compatible with human dignity in fact. If the state insists on detention, it must be able to defend the baseline conditions of that detention.

This matters even more when the prosecution is politically consequential and globally visible. The facility becomes part of the message, whether intended or not. Where the state holds a person signals what the state believes is permissible.

V. Incentives are the point: when misconduct does not threaten the case, misconduct becomes rational

A major reason abuses persist in any system is that costs are externalized.

If the legality of an extraordinary capture does not meaningfully threaten the prosecution, and if detention conditions do not meaningfully threaten the state’s pretrial posture, the system teaches a lesson: success cures illegality. That is the opposite of deterrence. It is an invitation.

Even when courts are constrained, the broader legal architecture still shapes incentives. If the architecture implies “first we take you, then we decide whether the taking mattered,” it normalizes conduct that other states will imitate, escalate, and weaponize.

This is why international concern about precedent is not sentimental. It is structural.

VI. A cleaner path existed in principle: local-facing legitimacy

In hindsight, the public will never know what avenues were attempted behind closed doors. But from a rule-of-law perspective, one point is clear: legitimacy is stronger when the visible act of arrest is locally grounded.

If the objective is prosecution under a civilian criminal framework, the most coherence comes when custody is obtained through processes that resemble law enforcement rather than unilateral force. In principle, that could include cooperation with local authorities, lawful extradition frameworks, or visible domestic legal action within the territory where the individual is found.

Even where cooperation is difficult, a state serious about integrity would prefer the cleanest available chain of custody, precisely because it strengthens the prosecution’s legitimacy and the state’s credibility.

The argument is not that the United States must be naive. The argument is that it should be consistent. A state that teaches the world about due process should ensure its own posture can be defended as due process, not merely followed by due process.

VII. The question is not whether accountability matters. It is whether legality still does.

The predictable counterargument is that the allegations are grave, and therefore technical objections should not derail accountability. But that is not an answer. The gravity of allegations increases the obligation to model legality. It does not erase it.

Accountability achieved through methods the state will not defend publicly does not strengthen the rule of law. It weakens it. It signals that the law is what happens after power succeeds, not what restrains power in the first place.

VIII. What a rule-of-law system would do now

A state committed to constitutional integrity would not avoid these questions. It would address them directly. That does not require disclosing operational details. It requires articulation of legal theory and baseline standards that preserve legitimacy. At minimum, three reforms are worth stating plainly:

First, in extreme cases involving extraordinary cross-border custody, courts or oversight bodies should require a formal record of the government’s legal basis, even if sensitive details are protected. Legitimacy requires more than “trust us.”

Second, minimum detention conditions should be treated as a justiciable pretrial requirement, not a background scandal. If the state seeks pretrial detention, it should be required to demonstrate baseline conditions consistent with human dignity, particularly in facilities with widely reported dysfunction.

Third, transparency should be the default posture. If the state claims lawful authority, it should publish the authority, redacting what is necessary for security, not what is merely embarrassing.

These reforms would not weaken the United States. They would strengthen it by making its claims defensible.

Closing Arguments...

A courtroom can be orderly while a system is lawless. A docket can be clean while the state’s hands are not.

Due process cannot begin with force alone and be completed by decorum. It must be coherent from the first exercise of power to the final judgment. That coherence is not academic. It is strategic and it is law. It preserves the sanctity of the Constitution, the credibility of the United States, and the fragile architecture of international order at a moment when precedent is everything. None the less, this moment in history no doubt will make the big screens.