Roberto Micheletti

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.

Church Leaders, Senators Oppose Forcing Honduras to Reinstate Ousted President and Would-Be Dictator

by Hans Bader on July 10, 2009

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

Honduran church leaders, and 17 U.S. Senators, are now opposing outside pressure on Honduras to reinstate the corrupt president that it ousted last Sunday for seeking to eliminate constitutional term limits and become a dictator. The Obama Administration has joined Cuban dictator Castro, the anti-American Venezuelan dictator Hugo Chavez, and the Organization of American States in demanding that Honduras put ex-president Mel Zelaya back in power.

“Óscar Andrés Rodríguez Maradiaga, the Archbishop of Tegucigalpa, and a Cardinal, strongly warned against Zelaya’s return to Honduras, which could lead to a ‘blood bath.’ Rodriguez, in a televised speech on July 4, asked the Organization of American States (OAS), which has demanded Zelaya’s restoration, to examine the ‘illegal deeds’ under Zelaya’s regime:’” “‘The Honduras people are also asking why the warlike threats against our country have not been condemned,’ he continued, by implication referring to invasion threats by Venezuelan strongman Hugo Chavez.”

Speaking on behalf of Honduras’s bishops, he criticized international sanctions and threatened trade blockades against Honduras: “‘We declare the right we have to define our own destiny without unilateral pressure of any sort, seeking solutions which promote the good of all,’ said Cardinal Rodriguez in his July 4 broadcast, reading from the bishops’ statement. ‘We reject threats of force or blockades of any sort which only make the poorest suffer.’”

“Implicitly defending Zelaya’s ouster by the Supreme Court and Congress, Cardinal Rodriguez said: ‘Each and every one of the documents which have come into our hands show that the institutions of the Honduran democratic state are valid and that what it has executed in juridical-legal matters has been rooted in law.’ Rodriguez noted that the Honduran constitution asserts that ‘whoever proposes’ to change the constitution’s prohibition against presidential reelection ‘immediately ceases to hold his post and remains disqualified for ten years for any public function.’ The Cardinal concluded: ‘Therefore, the person sought, when he was captured, no longer held the position of President of the Republic.’ The Supreme Court had authorized an arrest warrant for the President, he noted.” In short, the removal of Zelaya was valid under Article 239 of the Honduras Constitution, as the Honduran-American lawyer Miguel Estrada, the Honduran lawyer Octavio Sanchez, and a former assistant secretary of state, have noted.

Cardinal Rodriguez did, however, criticize the military for exiling Zelaya after removing him from office, taking him in his pajamas to the nearby country of Costa Rica, “when he observed that the constitution prohibits expatriation to a ‘foreign State,’” referring to Article 81 of the Honduran Constitution.

(The military’s role in removing Zelaya from office was valid under Article 272 of the Honduras Constitution. Moreover, it acted on orders of the Honduran Supreme Court, and the president was replaced by the Congressional speaker, Roberto Micheletti, who was duly selected by an almost unanimous vote of Honduras’s Congress. Given the country’s civilian leadership, the oft-repeated claim that Honduras had a “military coup” or is controlled by a “military junta” is simply false).

Obama and the State Department have argued that Zelaya’s removal from office was an “illegal” “coup,” but they have not explained how his removal could violate Honduran law if it was approved by the Honduran Supreme Court and carried out in accord with Articles 239 and 272 of the Constitution. That has puzzled many in the Senate.

On July 8, 17 senators sent Secretary of State Clinton a letter calling on the Administration to stop pressuring Honduras to accept the return of its would-be dictator, and asking the Administration to explain how it can possibly call the removal illegal when it was carried on orders of the Honduran courts and approved by the Honduran Congress. They noted that “the removal of Mr. Zelaya was legal and legitimate” pursuant to the Honduran Constitution’s “system of checks and balances.” Accusing the Administration of “disregarding Honduran law,” they argued that “U.S. assistance should not be interrupted to Honduras” based on the false assumption that it has experienced a military “coup d’etat.”

(To argue that Honduras acted illegally, the Obama Administration has made some pretty radical, and unfounded, legal claims, such as suggesting, contrary to the U.S. and Honduran Constitutions, that corrupt government officials can’t be removed from office without elaborate “judicial process,” and that there is a “universal principle” that allows elected presidents to stay in office, even, apparently, if they violate the law or constitutional checks and balances.).

The Episcopal Bishop of Honduras has also criticized ousted president Zelaya, noting that he had defied the Supreme Court and Congress when he “led a group of protesters to an air force installation and seized the ballot boxes, which the procurator’s office and the electoral tribunal had ordered confiscated.”

The democratically-elected president of Panama is now telling other American leaders not to meddle in Honduras’s affairs by forcing Zelaya’s return.

Obama Nominee: Corrupt Foreign Rulers Have Right to Remain in Office Until They Receive “Judicial Process”

by Hans Bader on July 8, 2009 · 1 comment

in International, Legal, Personal Liberty, Politics as Usual

Arturo Valenzuela, Obama’s nominee to be Assistant Secretary of State, falsely claims it was an illegal “coup” for Honduras to remove its corrupt would-be dictator, President Mel Zelaya, without providing more “judicial process,” even though courts said it was perfectly legal. Obama has joined Cuban dictator Castro and Venezuelan dictator Chavez in demanding that Zelaya be reinstated. He nominated Valenzuela despite his reputation as a loud defender of dictator Chavez. Obama, too, claims Zelaya’s removal was “illegal,” even though it was carried out on orders of Honduras’s supreme court, and ratified by Honduras’s Congress, pursuant to Articles 239 and 272 of the Honduran Constitution.

The Obama team’s idea that officeholders have a right to “judicial process” before being removed from office, a right that even trumps contrary provisions in a country’s constitution, is truly staggering. Many elected officials, like California’s governor, can be recalled from office by voters at any time, without any proof of wrongdoing, and without any due process at all. For example, California Governor Gray Davis was duly replaced by Arnold Schwarzenegger in a voter-initiated recall, without any allegation of proof of any wrongdoing. If due process keeps corrupt Honduran leaders from being removed without a trial, then American politicians like Gray Davis logically can’t be removed either.

Unlike the Honduran President, the U.S. president can only be removed by impeachment, but even impeachment does not require either “judicial process” or the “technical rules” required by due process “to protect persons accused of crimes.” Moreover, requiring impeachment before removal is not a civil right or universal human right, but rather a privilege accorded certain officials to promote peculiarly American notions of separation of powers. Nothing in human-rights treaties or customary international law gives elected officials a “right” to remain in office until they are formally impeached, much less given a trial.

Moreover, Article 239 of the Honduran Constitution expressly clear that Honduras’s president loses the right to remain in office, without any need for impeachment, by seeking to perpetuate his time in office, or even merely proposing an end to term limits. To push that illegal referendum, Honduras’s president relied on aid from a foreign dictator, Venezuela’s Hugo Chavez. He also pressured public employees, fired military leaders who refused to help him violate the law (a decision reversed by the Honduran Supreme Court), and threatened citizens with the cut-off of public services if they didn’t support him. His removal from office was clearly legal. (In any event, as a result of recent amendments, Honduras’s constitution does not contain a well-developed impeachment mechanism.)

It is unbelievably arrogant for Valenzuela and Obama (who knows little about Honduran law) to claim that they know more about what is legal in Honduras than the Honduran Supreme Court. It is unbelievably arrogant for the Obama Administration to insist that Honduras reinstate its would-be dictator based on made-up principles of law that are contrary to both U.S. and Honduran law, and nowhere found in international law. It is a truly outrageous form of legal imperialism for Obama to insist that Honduras’s democratic processes be subject to cumbersome restrictions that the U.S. refuses to observe within its own borders.

Obama also claims that Zelaya must be put back in power because of the “universal principle that people should choose their own leaders”. Never mind that even publications that criticized the manner of Zelaya’s removal, like the Economist, have candidly admitted that Zelaya was unpopular with Hondurans, who overwhelmingly back the removal of their president — and that Zelaya was a bullying crook with approval ratings below 30 percent. In the Washington Post, the Wall Street Journal, and other papers, Hondurans have overwhelmingly supported his removal.

Apparently, Obama is determined to saddle Hondurans with Zelaya whether they want him or not, just because they once elected him. (Even though he radically changed his policy positions after being elected). Under Obama’s reasoning, Richard Nixon, who was twice elected president, shouldn’t have been forced to resign over Watergate, because that violated the American people’s “universal” right to choose their ruler. And America’s electoral-college system, which has resulted in four presidents being selected despite losing the popular vote, must be as “illegal,” since it, too, limits the people’s “right” to choose their ruler. Under Obama’s reasoning, the UN and OAS could have slapped sanctions and a trade embargo on the U.S. after our Supreme Court decided Bush v. Gore.

What Obama really means is that presidents, once elected, have a universal right to rule their subjects, and to flout the constitution, as Zelaya did, without being subject to removal. This sounds disturbingly like the “divine right” to rule (without following the law) claimed by medieval kings. (It’s certainly not what Obama and I were taught at Harvard Law School).

But the entire purpose of constitutional checks and balances, is that even elected presidents can lose their right to rule if they violate their country’s constitution or laws. In our constitution’s impeachment process, the Congress removes the president from office for wrongdoing, even if he was elected by a landslide. In Honduras, the Congress voted by 123-to-5 to replace Zelaya, including the vast majority of Zelaya’s own political party.

Honduras did not use a formal impeachment process to remove its president because its constitution does not have a well-developed impeachment mechanism, says Latin American scholar Juan Carlos Hidalgo at the Cato Institute. But its unwieldy constitution does have other, less elegant means of removing abusive presidents: Article 239 bans presidents from continuing to hold office if they seek to extend their tenure, or merely propose an end to presidential term-limits. And Article 272 gives the military the power to enforce those term-limit provisions, which it did by executing a warrant for Zelaya’s arrest issued by the Honduran Supreme Court.

(The military’s law enforcement role is not unique to Honduras: in the U.S., federal troops were used to enforce a court order desegregating the schools in Little Rock in 1957, when the court’s order was thwarted by the Arkansas Governor. When confronted with powerful officials who refuse to comply with the law, the courts cannot rely simply on a handful of U.S. marshalls, but rather must look to federal troops or the national guard).