The Clinton State Department has been saying all along that further economic sanctions against the coup in Honduras were not possible until State Department Lawyers determined that it was a "Military Coup" instead of another species of coup.  The reason was because of restraints that issue from international agreements and treaties such as CAFTA.

Well, at least by implication State is leaking information that the lawyers have reached their decision, and it is a Military Coup. 

WASHINGTON, Aug 27 (Reuters) - U.S. State Department staff have recommended that the ouster of Honduran President Manuel Zelaya be declared a "military coup," a U.S. official said on Thursday, a step that could cut off tens of millions of dollars in U.S. funding to the impoverished Central American nation.

The official, who spoke on condition he not be named, said State Department staff had made such a recommendation to U.S. Secretary of State Hillary Clinton, who has yet to make a decision on the matter -- although one was likely soon.

I think the lawyers had to look at three things: 1) the physical act of kidnapping Zelaya and exiling him, claimed by the military to be its unilateral decision, 2) the subsequent militarization of many of Honduras' institutions since the coup, and 3) The very strange constitutional status of the Honduran Armed Forces (AAFF); it's unclear whether of not the AAFF is its own branch of government.

This may turn out to be an hour by hour development.  Al Giordano, who is on the ground in Honduras, has a very interesting analysis of the political situation in Honduras here.  At the very bottom of his blog, he has this update:

Update II: Radio Globo reporter Eduardo Maldonado is reporting, live, his eye-witness account of members of the Honduran military brass and the top chiefs of the National Police who recently arrived a building near Morazan Boulevard in Tegucigalpa and are meeting inside "on the third floor." The radio is also reporting that the Catholic Church hierarchy and various Chambers of Commerce have determined to back the San José solution of reinstating Zelaya to the presidency "regardless of the stance of the Micheletti government." Looks like the visa suspension is peeling away some inner layers of the coup onion rather rapidly. Something's up. And we're here monitoring the situation. Developing...

This gives some legs to the rumor I mentioned in my last post , i.e. that the military and police were meeting over Michelleti and the San Jose Accord.

Typically, our US MSM is asleep at the wheel.  To quote Dennis the Menace, Wake up, America!

It's not often that one is vindicated in Internet debates, so forgive me my indulgence.  Recently, Rutabaga Ridgepole wrote this comment;

This is a ridiculous story believed by nobody except a few semi-comatose American "radicals" like neoboho, whining all over the internet about how nobody cares, not even responsible and well-informed organizations like Human Rights Watch, which is mysteriously unwilling to stake its prestige on a stinking would-be dictator like Zelaya.

Roots didn't respond to my rejoinder, but never mind.  Yesterday Human Rights Watch issued this press release:

Honduras: Rights Report Shows Need for Increased International Pressure
Widespread and Continuing Abuses Documented by Inter-American Commission August 25, 2009

(Washington, DC) - The finding by the Inter-American Commission on Human Rights of widespread abuses in Honduras should compel the international community to take firm action, such as targeted sanctions, to resolve the country's ongoing crisis, Human Rights Watch said today.

The commission released a report on August 21, 2009, showing a pattern of serious violations under the de facto government, including excessive use of force, arbitrary detention, sexual violence, and attacks on the media, as well as several confirmed deaths and possible "disappearances." The commission also documented an absence of effective legal protections from abuse.

"Given the ongoing abuses documented by the commission and the lack of effective legal protection, it is urgent that the international community exert concerted and effective pressure to restore democratic government in Honduras," said José Miguel Vivanco, Americas director at Human Rights Watch. (continues at link)

The backstory to HRW's breaking its silence since July involves three events -  1) The Honduran Supreme Court's rejection of the San Jose Accord, 2) The failure of the final OAS mission to Honduras, and 3) The US State Department's visa action.  The letters to HRW may have had an effect, but HRW is an ex officio government agency, so it is not surprising that it would follow the State Department's policy closely - namely silence while the negotiations surrounding the San Jose Accord are active.  

And what's happening in Honduras?

A couple of things that appear on their face to relate to the above.  First, twenty members of congress, all members of Zelaya's Liberal Party, have issued a statement condemning the coup d' etat:

Declaration of Congressmembers Against the Coup

Tue, 08/25/2009 - 14:40 -- AP

Translation by Rosemary Joyce.

COMMUNIQUE
The undersigned, Deputies of the National Congress, declares the following to national and international public opinion:

FIRST: We affirm our unconditional loyalty to the principles and values of the Glorious Liberal Party of Honduras, to the Constitution of the Republic, and to our system of government, democratic, republican, representative and participatory.

SECOND: We reiterate our condemnation of the Coup d'Etat perpetrated the past June 28 against the Liberal Government of the Constitutional President of the Republic, Don José Manuel Zelaya Rosales, legitimately elected by the Honduran people, which has exposed us to the world as a country that resolves its differences resorting to force and illegality, for which the international community unanimously has reacted disclaiming and rejecting the de facto government.

THIRD: We condemn the expatriation and removal of President Zelaya as unconstitutional and because it will cover with shame the pages of national history.

FOURTH: We reject the attitude of the National Congress of imputing the commission of illicit acts to the President of the Republic to base their unconstitutional removal of him, since, if those existed, the Judicial Power is the only one competent to determine and judge them, respecting, in that way, the presumption of innocence, the right to defense, and due process.

FIFTH: We condemn the systematic violations by the de facto government of fundamental rights starting on June 28 and we demand the immediate cessation of repression against the Honduran people, whose peaceful demonstrations are an example of public spirit, a question that remains amply proven by the fact that no demonstrator has been captured for carrying firearms or edged weapons.

SIXTH: We recognize that the only suitably option to end the political, economic, social and moral tragedy that is clawing at the entrails of the nation, is to initiate as soon as possible a process that will bring us certainly to a firm and enduring reconciliation.

SEVENTH: Firmly convinced that the mediation by President Oscar Arias has culminated in a proposal that gathers all the fundamental points that will permit the re-establishment of constitutional order, we are showing our unconditional adherence to the SAN JOSE ACCORD and we ask for its immediate signing, cautioning that the negative only will lead us to painful and shameful episodes that will cover with ignominy the pages of national history.

Given in the city of Tegucigalpa, municipality of the Distrito Central, on the twenty-fourth of August of 2009. (the signatories and the Spanish version can be found at the link)

This brings back an older issue that I've never discussed.  The coup propaganda machine early on boasted that Zelaya's removal was unanimously supported by congress.  What was not mentioned that it was a special Sunday session of congress and several congress members were not invited, and the vote was by show of hands rather than roll call. 

Second, There's a rumor that golpista Jorge Canahuati met with the police and military yesterday to discuss Coup President Roberto Michelleti in the context of removing one barrier to accepting the San Jose Accord.  At this point the story has no legs that I am aware of, but Radio Progresso did report yesterday that Michelleti has tripled the guard around his home to 50.  Here's what I think is going on - many golpistas are getting nervous.  The San Jose Accord promises amnesty, but if the coup fails there will be no amnesty.  The list of constitutional violations committed by the golpistas is very long and they know it.

Robert Naiman has the story at HufPo.  Irma Villanueva, 25, testifies at Radio Progresso in Honduras:

Irma Villanueva: Good afternoon, last Friday we went to the march -

Host: Friday - you're talking of the march at Choloma

Irma: Yes, that's right. We went to the march, we stayed there a while. All of a sudden we saw like a people stampede coming, - All was confused, they brought tear gas canisters. Lost myself from my group in the confusion, they started grabbing us - other persons and myself, we were forced into a [police] patrol pickup. They said they were going to Choloma, they came out through some part behind, and I heard them ask a police officer: "Chepe Luis, and this here [woman], where is she going?" "She goes to San Pedro," he answered. - And then - only I remained on the flat part [on the bed] of the pickup [starts sobbing] and ... I don't know where they were bound, because, the cop kept me pinned face down, immobilized with his foot on my back [sobs], and they took me to a very cloddy, gritty place [sobs], then took me down and told me "Now bitch, now you're gonna see what happens to you for you being where you shouldn't be (starts weeping) I was raped by four police ... . I managed to see the name of two of them, one was Ortiz, another's name is Lopez, and the other was the one called Chepe Luis, the fourth one I couldn't - didn't find out his name.

After they raped me [themselves], they stuck into me a ... ... that black thing police strikes you with. They left me lying down in the open [i.e. in the wilderness] - - I begged them "please, don't hurt me, I have little children, I implore you! And they insulted me and called me names, I only asked God to protect me for my children, because they're young. They left me all alone there. I was unconscious, I guess, don't know. Then I got up with with what strength I had [left] and managed to reach the curb of a highway, I walked for around half an hour. I fell and stayed on the ground because I couln't stand the pain in my private parts [weeping] ... and a lady picked me up, I told her please to take me with my mom, don't know how much time we took, the only thing I could see, we left through the side of Zincon[ph] ... and I was taken where my mom was ... My mom was already there, and my husband was looking for me. No ... Didn't want to go to the police, how could I if they had been the ones who injured me. Only - [she can't go on]

I've read of 5 or 6 similar crimes by the National Police since the protests began in June.

The US State Department has, however, increased pressure on the golpistas.  The US Embassy in Honduras will no longer issues visas to Hondurans, except for emergency and immigrant visas. While I applaud the increase, this appears it will affect many Hondurans who bear no culpability to the coup d' etat or military/police human rights abuses, but what do I know?

Not unrelated, the Honduran Supreme Court, that bastion of freedom and democracy, has rejected the San Jose Accords. As RAJ notes, it's good that one branch of the illegal government has come clean to own-up that it won't accept the Accord's core  principles, hopefully cutting short the stall game. I think this rejection is the principle cause of State's action cited above.

Kgb999 and diachronic had an interesting exchange on Rutabaga's blog a couple of days ago.  It was off-topic, so I didn't want to jump in there.  But I would like to comment on the issues raised.

Kgb wrote: But ultimately, like with the Zelaya situation, they [USSC] are the arbiters of what the law means.  This is true to an extent, but it needs to be emphasized that In Honduras it is Congress who is the final arbiter on Supreme Court decisions.  This wasn't so with the original constitution, but rather resulted from a modification legislated in the past few years.  I apologize for not having a citation at hand - it would take a few hours to find it - if it became a burning issue I would find the citation.  My point here is to support the conclusions of review organizations have rendered that the Honduran Supreme Court is strongly politicized.

Wikipedia actually has a very good page on the Supreme Court of Honduras.  Of particular interest is something that has been largely ignored the the media, and that is that the Supreme Court which acted against Zelaya had been seated on June 25, 2009 - in a midnight session of congress.  According to Wiki, it was a controversial appointment.  In the first place, the Zelaya Administration was pushing for the reappointment of Justice Sonia Marlina Dubón de Flores , although the nominating board had not chosen her.  In fact, the selection of the nominating board was in itself controversial.  Instead of voting for individual nominees, congress was asked to vote for two "blocks" of nominees, chosen by the dominant National and Liberals (both politically right wing).  The leftist parties , United Democracy & Innovation, and the Unity Party abstained from the vote in protest.   Please note the date; June 25, 2009.  It is the same day that the Honduran Attorney General issued a secret detention order request against President Zelaya, and the next day, June 26, the new Supreme Court secretly issued the requested detention order.  At some point between midnight on the 25th and the end of the work day on the 26th, the brand new Supreme Court would have had to consider all the facts in a complicated case and issue a competent decision. 

In response to kgb's point, diachonic linked to a very good summary of legal issues that point to inpropriety by the Honduras coup participants, especially as it relates to international law.  However, I would like to take issue with one small part of Doug Cassel's article - a point that does not diminish what the author is saying, but one that is of utmost importance in the issue of the prelude to the Coup d'etat. 

On the day he was deposed, President Zelaya, in violation of a court order, was attempting to conduct a referendum on whether to call a constitutional convention.

In common speech, "referendum" is often exchanged with "plebisite" and even "public opinion poll."  I don't know if this is true with Honduran Spanish, but insofar as legal language, which ever attempts to be precise as possible, the terms are not interchangeable.  My own Black's Law Dictionary  (which is showing its age) defines "referendum" in three cases: 1) International law - a diplomat consulting her/his home government in regard to matters presented to him which he is unable or unwilling to decide without further instructions; 2)  constitutional law (Switzerland and elsewhere) - a method of submitting and important legislative measure to a direct vote of the whole people; 3)  Initiative -Right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body, and which, in most cases, would without action on the part of the electors become a law.

Black's defines plebiscite as a type of referendum, but it is both radical and rare.   In modern constitutional law, the name "plebiscite" has been given to a vote of an entire people...expressing their choice for or against a proposed law or enactment, submitted to them, and which, if adopted, will work a radical change in the constitution, or is beyond the powers of the regular legislative body.

The argument goes like this:  If President Obama asked for a show of hands in a Town Hall Meeting for everyone who supports the public option in National Health Care, could he be charged with conducting an unconstitutional referendum ?  If DNC sent out a questioaire asking voters if they supported single payer are they guilty of conducting a referendum outside the legal framework which governs such things in the USA.  Of course not.  Both cases would represent non-binding public opinion surveys.  Therefore, using the term "referendum" to represent a non-binding public opinion survey is distortional and leads one to believe that the Honduran questionaire is somehow illegal.

Kgb999 responds to diachronic with several points that he observed were absent in Doug Cassel's article.  He identifies two areas that concern him:

Thus far my focus has been two fold, #1 what was the legal basis for the challenge against Zelaya's public consultation, and #2 what was the basis for criminal charges being brought against him. In the first case, the argument was that the proposed constitutional assembly (and inherent dissolution of the existing constitution) was in violation of Articles 373, 374, and 375 of the Honduran constitution. On it's face that would seem to be an accurate complaint - hence the court issued an injunction against the consultation until the constitutional issue was argued in court.

Now #2 gets interesting. There is the simple layer, which is that Zelaya was in contempt of court and took actions in direct defiance of court orders and in violation of the law. But it's actually a bit deeper than that. It seems that they also accused him of attempting to violate Article 375 by dissolving the constitution. I think there is some validity to the argument that the act of dissolving the constitution would eliminate EVERY article protected under Article 374 ... including those in relation to presidential term.

Here are the relevant constitutional Titles, Chalpters and Articles:

TITLE VII
AMENDMENT AND INVIOLABILITY OF THE CONSTITUTION

CHAPTER I
Amendment of the Constitution

Article 373
The amendment of this Constitution may be decreed by the National Congress, in ordinary
sessions, with two-thirds of the votes of all its members. The Decree shall specify for that
purpose the article or articles that are to be amended, which must be ratified by the subsequent ordinary legislature, by the same number of votes, in order to take effect.

Article 374
The foregoing article, this article, the articles of the Constitution relating to the form of
government, national territory, the presidential term, the prohibition from reelection to
President of the Republic, the citizen who has served as President under any title, and to
persons who may not be President of the Republic for the subsequent period may not be
amended.

CHAPTER II
The Inviolability of the Constitution

Article 375
This Constitution does not cease to be in effect nor does it cease to be in force by act of force or when it is allegedly repealed or amended by any means or procedure other than that which it itself provides. In these cases, every citizen, whether or not invested with authority, has the duty to cooperate in maintaining or reestablishing its effectiveness.
Persons responsible for the events specified in the first part of the foregoing paragraph, as
well as the principal functionaries of governments that may subsequently be organized, shall be tried in accordance with this Constitution and the laws issued in conformity therewith, if they have not assisted in immediately reestablishing the rule of this Constitution and the authorities constituted in accordance therewith. The Congress may, by a vote of an absolute majority of its members, decree the forfeiture of all or part of the property of those persons and of others who have enriched themselves by supplanting the sovereignty of the people or by usurping the public powers, to compensate the Republic for any losses incurred on account of them.

As to issue #1, the legal basis for outlawing the opinion poll was tenuous.  To start off, you have to confuse "opinion poll" with "referendum."  Had the matter gone to court, as the constitution requires, I'm sure Zelaya's first line of defense would have been to challenge this conflation of terms.  Luis Alberto Rubí, the Public Prosecutor, did just that.  In the first of four allegations against Zelaya, Rubi argued offense against the government, based on 328 No. 3 of the Penal Code.  This asserts that any attempt to consult the public was prohibited except for those defined as plebiscites and referenda, reserved to other government entities. [link]  Rubi's second allegation is treason, Art 2, 4, and 5.7 of the constitution.  5.7, Rubi claims, prohibits referenda and plebiscites that are a threat the stone article 347, which, if you look above, is a term limit article.  And this is important.  Although the ubiquitous article 239 appears nowhere until the post facto document from Congress, citing 347 automatically implies 239, in that the latter defines the former.  Art. 2 deals with "treason" - The supplanting of popular sovereignty and the usurping of the constituted powers shall be considered crimes of treason against the Fatherland.  Art. 4 deals with changing the form of government as treason.

Rubi's third allegation is abuse of authorith; failing to comply in judicial or administrative orders.  And the fourth and final allegation usurping the government, based on Rubi's idea that the public opinion poll (which he already has accused of being treasonous and illegal) should be carried out by the Supreme Electoral Tribunal.

All these allegations rest on two things: that Zelaya was trying to run for a second term and that a popular opinion poll was a referendum or plebiscite.  I believe that Zelaya's lawyers could have successfully defended him had the case gone to trial.  But it will never go to trial since due process has been so severely abused by the coup leaders.  I would think a simple motion to demurr would do the trick.

I personally believe that Zelalya was guilty of ignoring a court order, but my goodness, put that in perspective.  It's akin to Carl Rove ignoring a congressional subpoena.  The remedy? a public flogging in the form of an admonishment.  It doesn't rise to the level of treason or even a trial.

Kgb666 asks an important question: One big questionmark is what the actual referendum Zelaya tried to pull off would have accomplished.  While not a "referendum" the purpose of the opinion poll was obviously political.  Zelaya was handed a petition with 600,000 signatures from "the people" to have a constitutional assembly.  In the Nov. 2005 election in Honduras, there were 3,988,605 registered voter, and only 46% showed up at the polls.  That about 15% of registered voters who expressed their desire for a new constitution.  So how many other Honduran are unhappy with the existing constitution?  The result of the public opinion survey would indicate this, one way or another.  I don't think anyone but the most idealistic believed that the the poll would lead to the fourth ballot box.  Look at the procedure involved.  If the majority answered in the affirmative, the matter would go to congress, and congress have to decide with a 2/3rd vote to have the fourth ballot.  Chances of that, considering the political composition of congress, are just about nil.  The political power of the poll, however, is substantial. Those politicians who serve the interest of the oligarchs would have a difficult time boasting about how democratic they are.