U.S.. Department of State

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.

Obama Punishes Small Country for Court Ruling Refusing to Reinstate Bullying Ex-President and Would-Be Dictator

by Hans Bader on August 27, 2009 · 18 comments

in International, Legal, Personal Liberty, Sanctimony

The Obama Administration has decided to block travel by the people of Honduras to the United States to punish their country for its Supreme Court’s refusal to back the return to power of Honduras’s ex-president and would-be dictator, Manuel Zelaya, who is backed by left-wing Latin American dictators like Castro and Chavez.  The Obama Administration is now blocking the issuance of nearly all visas, meaning that a Honduran grandma who wants to visit her grandkids in the United States can’t.

Obama’s decision came in response to a recent ruling by the Honduras Supreme Court, ruling that the removal of the country’s would-be dictator was a perfectly lawful “constitutional succession,” and that he must face criminal charges for the crimes he committed as president.  Obama’s action will further destabilize a country whose economy has been pushed to the brink by recent turmoil, and which is the third-poorest country in the Western Hemisphere. (Honduras has close economic links to the U.S., making it very vulnerable to sanctions).

Earlier, soldiers acting on orders from the Honduras Supreme Court removed Honduras’s president from office, after he attempted 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 and pet projects  (The ex-president made Richard Nixon look like an angel by comparison, and Americans would never put up with a president who behaved as badly as Honduras’s ex-president.   But American liberals sometimes romanticize left-wing dictators overseas, and Honduras’s ex-president, despite being a wealthy landowner, knew how to curry favor among intellectuals and journalists through seductive left-wing rhetoric).    The nation’s Congress then voted almost unanimously to replace him with the Congressional speaker, who is the country’s current president.

Because soldiers, “instead of the police,” carried out the court’s orders to remove the ex-president, the removal has been falsely referred to ever since as a “military coup” — by liberal journalists, the Obama Administration, the Carter Center, and the leftist regimes that now prevail in much of Latin America.  Never mind that 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.  Never mind that Honduran Constitution expressly vests the military — not police — with the power to enforce Constitutional guarantees like term limits, in Article 272. Or that 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). Or that soldiers have occasionally been used to enforce court orders, even in the U.S., such as in the 1957 Little Rock desegregation order.

The ex-president’s removal was perfectly legal, 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.

That no “military coup” occurred in Honduras has long been clear, from the fact that it is the Honduras’s Supreme Court and Congress that continue to object on legal grounds to the ex-president’s return, while the military has said that it will not block his return if Honduras’s courts or legislature conclude that the President’s return would in fact be legal. (Indeed, the military was a big loser in the ex-president’s ouster, since the U.S. promptly cut off military aid as a result, and Honduras is heavily reliant on foreign aid)

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

Obama has argued that elected presidents have a right to continue ruling even if they violate their country’s constitution, and his assistant secretary of state argued that presidents should not be removed without elaborate “judicial process” (an argument at odds with our own Constitution’s provision for legislative impeachment, and Honduras’s constitutional provision automatically stripping presidents of their office if they even propose changes to constitutional term limits).

The Obama Administration earlier showed  its ignorance by suggesting 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 intimidate 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.”

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. 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, admits that Obama has shown a “willful disregard of political oppression” by left-wing dictators in Latin America).

There was no “coup” in Honduras.  A coup is the sudden, illegal deposition of a legitimate government by a small group.  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.

Given the substantial Honduran population in the U.S., and the fact that Hondurans frequently travel to and from the U.S. on business or to visit family members, the Obama Administration’s restrictions on their relatives’ right to travel are a serious encroachment on civil liberties.

Unlike the Washington Post, which has largely told the disturbing truth about Honduras’s ex-president (despite being a liberal paper),the wire services have often sugarcoated the terrible record in office of Honduras’s ex-president Zelaya, and his biggest supporter, the thuggish Venezuelan strongman Hugo Chavez.

For example, the Associated Press’s Morgan Lee and Alexandra Olson have given Zelaya and Chavez fawning coverage, claiming that it is only Latin America’s “elites” who object to them — a blatantly false claim, given that Zelaya was so unpopular among his people that his approval rating was only 30 percent at the time of his removal.  They called Chavez, who engaged in rampant vote fraud in his reelection bid (as well as censorship to silence critics and unfavorable publicity) “democratically elected.”  Never mind that Chavez  has shut down independent media, shot peaceful demonstrators, harassed elected mayors, and seized private property on a vast scale.

(Obama’s appointee to be the FCC’s “diversity officer” is a big fan of Venezuelan dictator Chavez, Mark Lloyd.  Lloyd has called Marxist Venezuela a model, praised its authoritarian leader’s “incredible revolution” and defended his attacks on independent media.  Obama’s nominee to be Assistant Secretary of State, Arturo Valenzuela, has reputation as a loud defender of Venezuelan dictator Chavez’s terrible record on freedom of the press.  Obama’s green-jobs czar, Van Jones, who is busy orchestrating advertiser boycotts of Obama’s media critics, was until recently a “member of a radical communist group that was dedicated to ‘organizing a revolutionary movement in America.’”)

Ignorant of Honduran economic realities, they also make much of the fact that Honduras’s ex-president raised the minimum wage, even though many of the beneficiaries of this increase were well-off public employees whose pay is based on a large multiple of the minimum wage, and many of Honduras’s poor are not covered by minimum wage laws.  Of those poor people who were covered, thousands lost their jobs when the minimum wage went up (since their employers could not afford to pay such increased wages for unskilled labor; a newspaper from the ex-president’s own Liberal Party predicted it would lead to 40,000 layoffs).  By contrast, public employees in Honduras sometimes have collective bargaining agreements that set their pay as a multiple of the minimum wage, meaning that a high-paid bureaucrat may get a pay raise when the minimum wage goes up.  Honduras’s ex-president also gave millions to his wealthy cronies, like the clownish buffoon Milton Jimenez.

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