The Honduran Situation and the US ResponseMike Rappaport

I will be the first to acknowledge that I don't know much about the Honduran situation.  But it seems that the President of Honduras sought to amend or replace their constitution in an unconstitutional manner so that he could serve a second term.  The unconstitutionality of his action was declared by the Honduran Supreme Court, which was supported by the legislature, but the President ignored the order.   The President planned to hold an illegal referendum and even received the ballots from Venezuelan President Hugo Chavez.  Many of the President's top officials were either fired or resigned.

There are two questions.  First, it is in an interesting question whether the ouster of the President by the military, on the orders of the Supreme Court, is an illegal action or a coup.  I really don't know enough to say, but there seem to be strong arguments it was not.  Holding an illegal election and violating a Supreme Court order would seem to be illegal.  If the election had been held and a new constitution written, then would that not have been a coup?  Of course, it would seem that the best course would have been for the legislature to impeach the President  -- why that was not done I do not know -- but even in the absence of that, it is not clear what was the proper legal response in this situation.     

But putting aside these difficult legal questions, why would Obama take a position on this question in favor of the ousted President?  Especially after taking the position in the last few weeks that it was wrong to get involved in Iran, why was it ok to involve himself in the Honduran situation? 

I find this baffling.  Can anyone defend or at least explain Obama's actions?  

Update:  

Well, this article helps.  The White House has issued a press release -- through its media arm, the New York Times -- attempting to explain its strategy.   Obama does not want to allow Hugo Chavez to blame the US, so the US will condemn the ouster as a coup.  This is more of the sophisticated, nimble action by Obama which is catching Hugo Chavez off guard. 

This does help to explain the consistency of Obama's actions in Iran and Honduras.  In both cases, Obama believes that two democratic dictators would like to place the blame on the US.  But he is too quick for them.  He will prevent them from placing the blame on the US -- by giving them exactly what they want.  In Iran, Obama says there is not much difference between Ahmadinejad or Mousavi.  In Honduras, Obama calls the ouster an illegal coup.  Any thoughts on how Obama would have outwitted Hitler in Czechoslovakia?   

Well, I suppose that there could be acceptable solutions to all of this.  If the former Honduran President is returned to office, but is not allowed to hold the illegal election or to run again, that might not be too bad.  But if he is returned to office and is allowed to hold the election, Obama will have outwitted Chavez -- by giving him exactly what he wants.

Further Update: 

Wikipedia provides some useful information, including why the legislature did not impeach the President:

President Manuel Zelaya intended to hold a "nonbinding" public referendum on June 28, on whether to call a National Assembly to rewrite the constitution, to take place concurrently with this year's elections. Zelaya's opponents claimed that his intention was to allow his own re-election. Article 239 of the Honduran Constitution, which forbids any former chief executive from being re-elected President, states that any citizen who proposes reforming said article, and any others who support such a person directly or indirectly, are to immediately "cease carrying out" any public office.^[11] The Constitution, however, establishes no process for impeaching or removing a president.^{[citation needed]} Furthermore Article 42, Section 5 of the Constitution states that citizenship is lost for "inciting, promoting or supporting the continuation or the reelection of the President of the Republic." According to the same article, revoking citizenship for this reason requires a court sentence and then a government order ("acuerdo gubernativo").^[11]

The intended referendum was rejected by Congress, the attorney general, and the top electoral body, and ruled illegal by the Supreme Court.^[12] The Constitution can only be modified by a two-thirds majority of Congress. However, certain core articles of the Constitution are "set in stone" and cannot be modified, either by Congress or by a referendum. The Constitution itself, as a whole, is unabolishable, thus calling for a constitutional assembly to replace it is by itself a violation of the Constitution.^[13] On June 23, 2009 the National Congress passed a law forbidding holding referenda less than 180 days before the next general election; as the next elections are set for 29 November 2009, this invalidated the referendum bid.^[14]

Congress had begun discussing how to impeach Zelaya but lacked a clear constitutional process to do so.^[15][  Congress, including most of Zelaya's own party, had voted for an urgent investigation of whether Zelaya had violated the constitution and even whether he was "mentally incapable" to hold office.^[16] Zelaya responded to the congressional leader Roberto Micheletti, a member of the same party who has since been sworn in as President in his stead, by saying "What's with you, Roberto. I was elected by the people, not the congress. How would you make me ineligible, you're a lousy second-rate congressman who got your post because I gave you space in my party."^[16]

Comments

[dearieme]

I suspect that the crucial difference is that he might send the marines to Honduras but not to Iran.

[Lou Gots]

Good analysis. We do well to recognize our limited understanding of the Hondurn constitution. But some folks hold that we should consider foreign law in judging our own institutions, and since turnabout is fair play, let us look a Honduras through U.S. spectacles.

Suppose, just for the sake of a hypothetical, that between the vote of the electoral college and inauguation day, the Supreme Court had ruled that Effendi Obama was unqualified to become President. (something about his birth certificate, maybe) Whereupon, the Effendi, sua sponte, and in disrgard of Article V of the U.S. Constitution, calls a mock constitutional convention to install himself.

On inauguaration day, two men show up to be sworn in, Joe Biden, who the Constitution, Congress and the Supreme Court all agree is to be President, and the Effendi himself, who wanders off to get himself sworn in by a D.C. magistrate or somebody.

"General Gots, President Biden is on line one and someone calling himself 'President Obama' is on line two."

If this sounds too dramatic, let us recall that the opinions of both Grant and Sherman were sought by both sides during the work-up to the Andrew Johnson impeachment.

Certainly, the most important lawyers in the country at that moment would be the JAG's. The crucial fact is that the U.S. version of the soldiers' oath is to the Constitution, and not to some el Jefe. We would hope that it works the same way in Honduras.

It is worse than fatuuous to even suggest that upholding and defending the Constitution is a "coup d'Etat." Not in the United States, and not in Honduras, would it be wrong to show the prfetender to the door, no matter what his mock convention and any subsequent straw vote may have done.

[krome]

The Hitler - Czech scenario?

How about - a long winded discussion of historically fluid borders, and some sort of a call for a one-state solution (initially overseen by the UN)?

[Larry]

Obama could have outwitted Hitler in Czechoslovakia in 1938 by telling Benes to disarm his troops and run the Swastika up the flagpole. I could almost hear his speech, "There are some political leaders who refuse to recognize their country's maltreatment of its Sudeten German minority. I do not stand with them..."

[Johnny]

Regardless of our understanding of Honduras, military coups just dont seem to be the way to go. Also, my understanding is that referendum was not to change the constitution, but was merely a non-binding recommendation from the people that the constitution should be amended. Seems like a subtle but big difference. Its as though the legislature and Supreme Court were afraid that the people would actually support an amendment to the constitution and that support would be legitimized by a referendum and not just some opinion pole. Either way, it seems like a bad time to start supporting military coups against democractically elected leaders.

[teqjack]

CITGO is too big to fail.

[Lou Gots]

Hold on there, Johnny. Some of us old fuddy-duddies actually think the words of the Constitution make a difference. If the Honduran constitution does say what the Wikipedia article your characterization as its enforcement as a "military coup" cannot hold up. You admit that the proposed "referendum" had been non-binding. How a "non-binding recommendation" differs from a straw poll remains unexplained. According to the article, the constitution, which military officers are presumably sworn to uphold, expressly makes such a referendum an illegal nullity.

Perhaps you may enlighten us all on how the proposed referendum might "legitimize" anything when the constitution not only bars it, but expressly forbids the amdendment the proposed referendum proposes. Pray tell, which side is attempting a "coup?"

Perhaps it is unwise to make a constitution unamendable. Honduras has done so, and that is their organic law.

[Johnny]

so you're saying that the military coup was not in fact a military coup? Perhaps you would prefer 'domestic contingency operation'?

If the referendum is an illegal nullity then the coup isnt necessary to begin with, just let the referendum go on and if it passes it doesnt really matter because it is unconstitutional anyway and can be voided. Under your logic, whenever the president attempted to violate the constitution, a coup should remove him/her from power. That has some intense implications.

My impression is that the reason for the coup would be fear of the results of the referendum. Why else would the coup occur before the vote? Also, from what I've heard the fact that none of the private media outlets in Honduras are even reporting on the coup or running any news programs is pretty suspect also.

[Mike Rappaport]

Johnny: The President took an action found to be illegal by the Supreme Court, the legislature, and much of his cabinet. He fired the military leaders and secured ballots from Hugo Chavez. You say that, if the referendum was unconstitutional, it was a nullity. Why do you say that? That assumes that the decision of the Court (or whoever else got to make the decision)would be followed. But the President ignored the Court's earlier decision. There is every reason to believe he would ignore any other decision of unconstitutionality. We have seen how democratic dictators seize power in South and Central America. This is how they do it. Through illegal referenda, combined with intimidation. If you think an illegal referenda is a justified way to claim power, then you should say so. But I don't think you should give the impression that the opponents of the President were making a mountain out of a molehill.

[Johnny]

I was going off of what Lou Gots wrote in response to my first post.