Obama to Cut Off Aid to Honduras, Based on Legal Mistake and Misreading of the Law

by Hans Bader on August 29, 2009 · 13 comments

in International, Legal, Personal Liberty, Politics as Usual, Sanctimony

The Obama Administration is about to cut off aid to Honduras, one of the poorest countries in the Western Hemisphere. Earlier, the Obama Administration blocked travel to the United States by the people of Honduras.

Both actions are foolish responses to a recent ruling by the supreme court of Honduras refusing to approve the return to power of the country’s bullying ex-president and would-be dictator, Mel Zelaya. Zelaya was earlier arrested by soldiers acting on orders of the Honduras Supreme Court, which had ruled that he was no longer president. He was then replaced by his country’s Congress with a civilian successor, and forced into exile. Zelaya’s removal came after he systematically abused his powers: he sought to circumvent constitutional term limits, used mobs to intimidate his critics, threatened public employees with termination if they refused to help him violate the Constitution, engaged in massive corruption, illegally cut off public funds to local governments whose leaders refused to back his quest for more power, denied basic government services to his critics, refused to enforce dozens of laws passed by Congress, and spent the country into virtual bankruptcy, refusing to submit a budget so that he could illegally spend public funds on his cronies.

State Department lawyers, who are not experts on Honduran law, plan to declare the ex-president’s removal a “military coup” to justify cutting off aid, even though Honduras has a civilian president, and the ex-president was lawfully removed from office (although his subsequent exile may technically have violated Honduran law).

Journalists nonsensically refer to Honduras’s removal of its ex-president as a “coup” even while admitting that it was approved by the country’s supreme court. But if it was legal, by definition, it cannot be a coup, since a coup is defined as “the unconstitutional overthrow of a legitimate government by a small group.”

The ex-president’s removal was perfectly constitutional, say many lawyers and foreign policy experts, including attorneys Octavio Sanchez, Miguel Estrada, and Dan Miller, former Assistant Secretary of State Kim Holmes, Stanford’s William Ratliff, and the Wall Street Journal’s Mary Anastasia O’Grady.

Moreover, the ex-president’s removal was not a “coup” because it was not committed by a “small group,” as the definition of “coup” requires. The removal of Honduras’s president was supported by the entire Honduran Supreme Court, an almost unanimous Honduran Congress, and much of Honduran society. Honduras did not lose its government, but merely replaced one illegitimate part of it: its overbearing president. And his removal from office (as opposed to his subsequent exile) was clearly legally justified.

The fact that solders, not police, enforced the removal of Honduras’s ex-president does not make it a coup. Because soldiers, “instead of the police,” carried out the court’s orders to remove the ex-president, the removal has been falsely called a “military coup” by liberal journalists, the Obama Administration, the Carter Center, and the leftist regimes that now prevail in much of Latin America. But soldiers’ participation made sense. Only soldiers, not police, would have enough manpower to remove a would-be dictator who was the most powerful man in his country, with his own bodyguards. More importantly, the Honduran Constitution expressly vests the military — not police — with the power to enforce Constitutional guarantees like term limits, in Article 272. The president forfeited his right to rule by proposing an end to term limits (Honduras has had such a problem with elected presidents later becoming “presidents for life” through vote fraud and intimidation that Article 239 of the Honduras Constitution strips presidents of the presidency if they even “propose” an end to term limits). And soldiers have occasionally been used to enforce court orders, even in the U.S., such as in the 1957 Little Rock desegregation order.

The State Department staff are reported to have a ridiculous response to all this. The State Department is apparently well aware of the constitutional provisions that justify the ex-president’s removal, but believes that they are irrelevant because they were not cited by the Honduran Supreme Court prior to the President’s removal. The U.S. Embassy in Honduras argues that because the court did not cite Article 239 in its order removing the President, Article 239′s provision stripping presidents of their office for proposing an end to term limits (as Honduras’s ex-president did) is an irrelevant after-the-fact “post-removal” rationalization.

The State Department staff’s position reflects a basic misunderstanding of how courts operate in the real world. It is quite common for courts to rule first, and issue an opinion explaining their reasoning later, especially in election disputes and other cases where courts need to rule rapidly (like removing a would-be dictator). Many of the court rulings in the Bush v. Gore litigation, for example, were issued first, with the court opinions explaining them following only later. When the Second Circuit Court of Appeals upheld the federal government’s bankruptcy plan for Chrysler, it ruled first on June 5, and issued its opinion explaining its order only two months later, on August 5. When the Seventh Circuit Court of Appeals overturned Georgia Thompson’s conviction and ordered her release from jail in United States v. Thompson, 484 F.3d 877 (7th Cir. 2007), it did so from the bench, “without waiting until completion of a written decision,” and explained its decision only 2 weeks later. Thus, the fact that the Honduras Supreme Court did not explicitly cite Article 239 in its decisions leading to the ex-president’s removal is of no consequence.

Confronted with the sound legal basis for removing the ex-president under his country’s constitution, the Obama Administration has responded with a series of increasingly weak rationalizations for stubbornly seeking to force his return on the Honduran people.

For example, President Obama has erroneously suggested that people have a “universal right” to keep the presidents they elected in office — even, apparently, if they violate their country’s constitution, as Honduras’s ex-president did. That is certainly not true in the U.S.: Richard Nixon was reelected in a landslide in 1972, but was forced to leave office 2 years later after he attempted to cover up the Watergate burglary.

Obama’s nominee for assistant secretary of state has erroneously argued that presidents should not be removed without unspecified “judicial process.” That argument is at odds with our own Constitution’s provision for legislative impeachment; Honduras’s constitutional provision automatically stripping presidents of their office if they even propose changes to constitutional term limits, without the need for impeachment or conviction; and the fact that Honduras’s ex-president was in fact removed through a “judicial” order, that has now been reaffirmed in a “judicial process.”

The Obama Administration earlier ignored bedrock constitutional principles by taking actions predicated on the erroneous idea that Honduran legislators and judges lost their right to hold office when Honduras’s ex-president was removed. That’s like saying that after Richard Nixon resigned in Watergate, all of his judicial appointees (including the 4 Supreme Court justices he appointed, such as Harry Blackmun and William Rehnquist) should have automatically lost their posts, and the entire Congress should have resigned. In an effort to pressure Honduras’s legislature and courts, Obama’s State Department earlier rescinded the visas of a Honduran Supreme Court justice, the leader of Honduras’s Congress, and its human-rights ombudsman, who had criticized human-rights abuses and intimidation by the ex-president. State Department spokesman Ian Kelly justified the taking away of the visas by saying that “We don’t recognize Roberto Micheletti as the president of Honduras. We recognize Manuel Zelaya.” U.S. Ambassador to Honduras Hugo Llorens similarly explained the revocation of a supreme court justice’s visa by saying that “the Supreme Court justice was part of the ‘regime.’”

But Congress and the Supreme Court are co-equal branches of government that do not lose their right to hold office merely because the president leaves his office. Presidents are not emperors. They are not the government, but merely part of it. President Obama was not taught this bizarre theory of imperial power at Harvard Law School, which he and I both attended.

Obama’s demand that Honduras reinstate its would-be dictator has emboldened other elected leaders in Latin America to try to make themselves dictators. (Even the liberal Washington Post, which has not endorsed a Republican for president since 1952, admitted in an editorial by Deputy Editorial Page Editor Jackson Diehl that the Obama Administration has shown a “willful disregard of political oppression” by left-wing dictators in Latin America).

Obama’s demand that Honduras’s ex-president be returned to office has been supported by the Cuban communist dictator Castro and the Venezuelan socialist dictator Chavez, who counted Honduras’s deposed president as an ally, despite his background as a wealthy and corrupt landowner.

But allying with Castro and Chavez to force the return of Honduras’s would-be dictator has not even improved U.S. relations with their countries. The dictators Castro and Chavez continue to attack and oppose the United States at every turn, and oppose all of its Latin American initiatives, like its plans for bases in Colombia to fight drug trafficking. Obama has received nothing in exchange for his appeasement of Latin America’s left.

Marcela August 29, 2009 at 5:23 pm

As a Honduran living in the midst of all this turnmoil I'm appalled by the ignorance of most news reports and international networks. More articles like this one should be written for they tell the truth about what is really happening in this country. I have to add though that lots of people that worked for the Zelaya government have an order arrest issued by the Interpol. I wonder why that doesn't mean anything for the Obama administration. Besides, the pro-Zelaya mobs in Honduras are commiting serious and atrocious acts of terror since that man was removed from the presidency, in a effort to intimidate the population into submitting to their plans. I have to recall that many of those mobs have links to the Colombia's FARC and other drug-trafficking organizations that keep them funded. It's very easy for an uninformed Obama to sanction a country when he doesn't care what really happens in it.

Joe August 29, 2009 at 8:34 pm

This is basically right, but it is a slight oversimplification.

The court declared that the ex-president was no longer president (presumably by operation of Article 239, which automatically strips presidents of their office if they propose an end to term limits), and then issued a warrant for his arrest.

Technically, he removed himself from office through his actions; the court merely recognized that and issued an arrest warrant.

Of course, the military was merely ordered to arrest him, not exile him from the country — which may have been illegal, however sensible it may have been to remove him from the country to prevent attempted jailbreaks, mob violence, and the like.

JB August 30, 2009 at 5:06 am

Even if the court hadn't declared the former president was no longer president, and ordered his arrest, his removal would technically be legal.

Even liberal commentators used to admit this, before it became clear that admtting this would make it harder to cut off aid under the fiction that what happened was a "military coup."

As one of the earlier posts linked to in the above post notes,

"Article 272 of the Honduran Constitution gives the military the power to remove a president even without a court order, if he seeks to violate the term limits prescribed in the Honduran Constitution. Even a legal commentator, Litho, at the leading liberal blog Daily Kos, which is run by a leftist Latin American immigrant, admits that the military’s action was 'legal' in a 'technical sense' under the Honduran Constitution."

By the way, Litho now quotes some Honduran soldiers saying they acted illegally; but all the sources he cites for that claim say they acted illegally in EXILING the former president, not REMOVING him from OFFICE. The removal itself was perfectly valid. (Litho also claims that the Honduran Constitution, which is nearlu two centuries younger than ours, is an outdated relic).

John August 31, 2009 at 8:27 am

The State Department employees who came up with this erroneous legal interpretation claiming that what happened in Honduras was an illegal coup are probably the same left-wing State Department employees who applauded the harangues of Cuban spy Walter Kendall Myers.

Myers was an openly pro-Castro employee of the State Department.

Myers delivered left-wing harangues at the State Department's headquarters in the years before he was finally discovered to be a spy for the Cuban government.

Myers' pro-Castro sympathies only seemed to increase his popularity among the career staff at the State Department, who are mostly staunch leftists.

John August 31, 2009 at 8:37 am

The Administration has tried to justify its dubious position by citing a so-called "international consensus."

But as another commenter put it,

"Most of the nations in the region that are demanding Zelaya's return are either run by dictators, or run by presidents who want to rewrite their own constitutions to expand their powers — the way that Zelaya attempted to do (like Colombia's Uribe, who wants to get rid of his own term limits, and Costa Rica's Arias, who wants to allow relatives to succeed him and have more power than he did).

The OAS is a president's club that has a pro-executive bent. And what happened in Honduras is that the legislature and judiciary quite legitimately don't want their ex-president back, given his abuses of power."

andy September 2, 2009 at 4:44 am

For example, President Obama has erroneously suggested that people have a “universal right” to keep the presidents they elected in office — even, apparently, if they violate their country’s constitution

The people of Honduras have spoken loudly. They do not want Zelaya back. It is an overwhelming majority. At least 80% probably more. All government institutions dont want him back. The church has even spoken against bringing him back. Business leaders have spoken and they prefer to suffer financially then bring Zelaya back. The country is making a stand that says NO COMMUNISM!

If you bring Zliar back what do you think will happen when the shark Chavez gets his hands on the next corrupt president. They will do as Chavez does. Whatever they want. That is what Zliar was doing and that is why he got thrown out.

Obama and Hillary position is absolutely absurd. If 100% of the voters in the USA knew this whole story how many would vote for Obama again?

aid credit September 22, 2009 at 10:20 am

Is there any website that can give us a lots of information like what was stated here? Thanks for the Idea…

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