Mader Blog

I’ve been traveling for the better part of a month, and I haven’t been able to stay on top of the developments in Honduras. Here’s a brief round-up:

• The Law Library of Congress’s Directorate of Legal Research has issued what is, to date, the only objective legal analysis of the Honduran constitutional crisis. Its conclusion?

  Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

  In other words: it wasn’t a coup. The report proceeds through a series of questions: [1] Does the Honduran constitution empower the Congress and / or the judiciary to remove a president? (Yes); [2] Did the Honduran Supreme Court have the legal authority to hear a case against the president? (Yes); [3] Did the Honduran Supreme Court have the legal authority to order the military to carry out an arrest warrant against the president? (Yes); [4] Did the Honduran Congress have legal authority to remove a president from office? (Yes); [5] Was Zelaya removed from office in accordance with these legal rules? (Yes).

  The crux of the report, at least with regard to Zelaya’s actual removal from office, is that the Honduran Constitution empowers the Congress to “approve or disapprove” executive conduct, and that the Congress had the authority to interpret the word “disapprove” to include the power of removal. That’s a controversial interpretation, to be sure; but as the report notes, the Constitution vests Congress with that interpretative power. There will inevitably be many outside of Honduras, and not a few within, who will claim that the interpretation was flawed. But the Honduran Constitution clearly empowers Congress to make the judgment call it made. Imposing any other interpretation clearly undermines the rule of law.

  Finally, the report notes that Zelaya’s forcible removal from Honduras likely violated the Constitution, which provides that “[n]o Honduran may be expatriated nor handed over to the authorities of a foreign State.” But as I’ve noted elsewhere, the fact that Zelaya’s removal from Honduras was illegal does not mean that Zelaya’s removal from office was illegal. It wasn’t.

• In the wake of the Law Library of Congress report, opinions may finally be shifting. Writing in The New Republic—a traditionally liberal magazine—James Kirchick notes that “the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous.” As he notes, this leaves the Obama administration (which has steadily escalated its condemnation of the removal and its demands for Zelaya’s return to office) “squarely contradicted by the only known official analysis of the constitutional issues involved.” Kirchick offers an interesting explanation for the administration’s stubbornness:
  

  The day after Zelaya was put on a plane to Costa Rica, Obama condemned the move as illegal, saying that “it would be a terrible precedent if we start moving backwards into the era in which we are seeing military coups as a means of political transition rather than democratic elections. We don’t want to go back to a dark past.” His invocation of U.S. support for armed opposition movements fighting communist insurgencies in Latin America during the Cold War is one of numerous apologies for past American actions that he has offered since taking office, a tactic which seems to be a core tenant of his diplomatic strategy.

  That may or may not be Obama’s motivation; but in any case, as Kirchick rights, it seems clearer by the day that “U.S. policy has become a mistake in search of a rationale.”

• The latest manifestation of that mistake is the American threat not to recognize the outcome of the upcoming presidential election—notwithstanding the fact that the election is a contest between candidates chosen while Zelaya was in office and administered by an electoral commission similarly assembled before Zelaya’s ouster. In short, the Obama administration has decided to use Honduran democracy as a bargaining chip in order to achieve Zelaya’s return to office. Kirchick notes the absurdity and hypocrisy of this position:
  

  How does this administration justify its recognition of results of elections in Pakistan, Iraq, and other countries mired in constitutional disputes, but now refuse to recognize an election in Honduras, even if it is conducted in a free and fair manner? And why give greater diplomatic dignity to the representatives of Iran–who have no legitimacy whatsoever–and not those of democratic Honduras?

  Writing in Foreign Policy magazine, Kevin Casas-Zamora makes a similar point:

  However imperfect, the election still offers the best route to restore some kind of normality in Honduras, so that the country’s democratic breakdown is not complete. . . . Without a doubt, semi-authoritarian thugs like Hugo Chávez and Daniel Ortega will cry foul no matter the election result since their man in Tegucigalpa never returned to power. But for serious countries such as the United States and Brazil — countries that wound up accepting the results of the recent election in Iran — turning the winner of a free and fair election in Honduras into a pariah would not just be an act of immense hypocrisy but also of foolishness. It is a surefire way to prolong this crisis indefinitely into the future. The price of this would be paid, as usual, by the poorest of the poor in Honduras.

  He concludes: “Unless evidence emerges that the current authorities in Honduras are engaging in systematic harassment against opposition leaders or the press, evidence of which so far has been scant, there is no reason to deny diplomatic recognition to the winner of November’s poll.”

• Michael Totten, writing in Commentary magazine, echoes this point:
  

  Either way, whether the ousted president returns or he doesn’t, a new election is scheduled to take place in November, and a new government will be sworn in next January. The crisis will then be over no matter what else happens between now and then. This may not be the preferred solution for the Obama administration and the Organization of American States, but it will solve the problem. Both Zelaya and the controversial interim government will be history. The only reason Honduras should be isolated or sanctioned after November is if the election is stolen or canceled.

  Indeed. How has such a simple proposition become so controversial? And what madness has seized the Obama administration that they are willing to write off the results of even a free and fair democratic election in order to rationalize a hasty and ill-considered initial stance?

• And what of the man Obama would make President of Honduras again? The Miami Herald reports:
  

  It’s been 89 days since Manuel Zelaya was booted from power. He’s sleeping on chairs, and he claims his throat is sore from toxic gases and “Israeli mercenaries” are torturing him with high-frequency radiation.

  Ah. So either [1] Israeli mercenaries are torturing Zelaya with high-frequency radiation; or [2] Zelaya is a paranoid delusional; or [3] Zelaya is not delusional, but there are no Israeli mercenaries, and Obama’s preferred president is knowingly stoking anti-Semetic sentiment. (Not anti-Semetic? Then why “Israeli” mercenaries?)

The global endorsement of Manuel Zelaya following his ouster was hasty and ill-considered back in June. In October it has become a farce. Will the United States really betray the cause of democracy and the rule of law in Honduras? And if it does, will Canada play along?