Illinois Republican Congressman Aaron Schock recently commissioned a research project by the Library of Congress on the constitutionality of the removal of President Manuel Zelaya.  The Report for Congress, Honduras: Constitutional Law Issues, August 2009, concludes that the Honduran Congress acted legally in President Zelaya's removal from office, but concedes his exile was not legal.  As we would expect, the report is being circulated in congress, obviously informing senators and representatives on the constitutional issues involved, but it is also well circulated in Honduras, as it tends to bolster the claim on the de facto government that it was not a Coup d'Etat, but rather a perfectly legal transfer of power.

US msm, always a few days behind, is slowly picking up the story, and the right-wing blogosphere is having some fun - one more bullet to use against President Obama and Secretary Clinton.  For example, this scree from Gary Schmitt @ the American Enterprise Institute's "Enterprise Blog:"

In an earlier post I noted that the Obama administration's description of the Honduran congress and court's decision to remove Honduran President Zelaya from office as a coup d'etat reflected the shallowest understanding of democracy, constitutionalism, and the rule of law.  Since then, the administration has done nothing but turn the screws on Honduras by cutting aid and denying visas to its officials, going so far as to reject Honduras' upcoming, November national elections as illegitimate. Not surprisingly, all of this has fed Honduran instability--especially now that Zelaya has snuck back into the country--and given U.S. adversaries in the region (such as Chavez's Venezuela) even more reason to believe that "populist dictatorships" are once again the wave of the future in Latin America.

The administration's high-handedness in this matter was fueled by its view that the removal of the sitting, elected President Zelaya was unconstitutional.  But apparently the administration didn't actually bother to read the Honduran constitution.  Now, a careful analysis of that document and the actions taken by the Honduran national assembly and high court by the Law Library of Congress (a division of the Library of Congress) indicates that a reasonable case can be made that both the Honduran congress and high court were within their constitutional rights to remove and arrest the president and that the current president, Roberto Micheletti, is not just de facto president, but the proper, constitutional successor.

But the report is fatally flawed

I'm going to cut this blog short because I've just learned that the Brazilian embassy in Tegucigalpa is under gas attack (not tear gas) by the Honduran military.  The argument against the report can be found on RAJ's blog here and here.  Both have good links for citations.  Below is a letter to the Library of Congress from the Chair of the Department of Social Sciences and Anthropology at UC Berkeley, Dr. Rosmary Joyce.  Quotha has another letter from Armando Sariento, former Honduran "IRS" director, which also criticizes the report.

Subject: Serious errors of fact in CRS LL File No. 2009-002965 on Honduras
From: "Rosemary A. Joyce"
Date: Fri, September 25, 2009 12:49 am
To: jbil@loc.gov
crsdirector@crs.loc.gov
Cc: mray@loc.gov
kott@loc.gov
rehlke@crs.loc.gov
kronhovde@crs.loc.gov
lkelley@crs.loc.gov
ccohen@crs.loc.gov
rwhite@crs.loc.gov
--------------------------------------------------------------------------

Dear Librarian Billingsley and Director Mulhollan,

I write to bring to your attention serious errors of fact in a
Congressional Research Service report written by Ms. Norma C. Gutierrez.
Given the damage this erroneous report has already done as it circulates
in Honduras and the US, I urge you to immediately issue a public
correction and withdraw the report, notifying members of Congress that it
is unreliable and based on faulty courses and inaccurate information.

Entitled "HONDURAS: CONSTITUTIONAL LAW ISSUES" and dated August 2009, the
report was released by Congressman Schock of Illinois today.

It has now been established unequivocally that Ms. Gutierrez' produced a
fatally flawed report.

There are four problems with Ms. Gutierrez' analysis:

(1) She cites a single Honduran legal analyst as a source of personal
communications "confirming" conclusions she draws. Her source is a known
supporter of the de facto regime in Honduras, Guillermo Pérez-Cadalso, who
testified on behalf of the de facto regime in July's hearings in the US
Congress

This is not a disinterested source. There are numerous Honduran law
professors, as well as constitutional law authorities in the US and Spain,
on record in writing finding the Honduran Congress exceeded its legal
authority in claiming to remove President Zelaya from office on June 28.
None of these authorities is cited.

(2) Ms. Gutierrez, rather than analyze the arguments made by the Honduran
Congress, as the questions she was asked would require, creates her own
novel theory: that the Honduran Congress used a constitutional
power given it to interpret the Honduran Constitution so as to justify its
removal of President Zelaya.

Specifically, she suggests that the Congress must have interpreted its
Constitutional authority to "disapprove" of the actions of a president,
extending the definition of "disapproval" to include "removal from
office".

Such a claim was not, however, actually made by the Honduran Congress in
its June 28 actions. This is a post-hoc rationalization for their actions
proposed by Ms. Gutierrez, apparently with guidance from Mr.
Pérez-Cadalso, who is cited as confirming this rationalization in a
footnote citing a
phone conversation.

(3) In fact, on May 7, 2003, the Honduran Supreme Court had nullified the
claimed power of the Congress to interpret the Constitution. Thus, it
is not surprising that the Honduran Congress made no such claim on June
28, since they no longer could assert such authority, which the Supreme
Court had rejected.

(4) Even during the period when the Honduran Congress acted under the
belief it had the power to interpret the Constitution, it was bound
by procedures that required it to explicitly note that it was
interpreting the constitution, and to define the circumstances of the
definitions they proposed.

This did not happen on June 28, almost certainly because no such claim was
then being made, because the Congress was aware of the May Supreme Court
ruling invalidating this claimed power.

In addition, the Honduran congressional session on June 28 was not the
kind of ordinary session that had been defined as allowing constitutional
interpretation; it was an "extraordinary session". Honduran Congressional
procedure requires that extraordinary sessions be convened based on a call
that defines the issues to be discussed, and no other issues can legally
be introduced.

Interpreting the constitution was not on the agenda (again, one can
suppose that this was because the Honduran Congress knew on June 28 that
the Supreme Court had nullified their claim to have such power over a
month earlier).

In reading the CRS, I was struck by the reliance on a single source, via
personal communications, to draw such consequential conclusions. There is
no shortage of legal scholarship published and available which would have
helped Ms. Gutierrez avoid these fundamental errors of scholarship; I
mention here only one such source, the widely distributed paper published
online by ASIL (the American Society of Internation Law), written by
invitation by Notre Dame Law Professor Doug Cassell.

There are more points that are disturbing in this CRS report. For example,
footnote 43 offers a characterization of a forged resignation letter
attributed to President Zelaya, backdated to June 24, as being explained
as a true letter written for nefarious purposes; the source for this
claim, again, is the same supporter of the coup, Mr. Pérez-Cadalso. Yet
his claim is widely discredited; the back-dated letter is widely viewed as
a forgery produced when the coup was originally scheduled to happen, an
event delayed in part by US diplomatic action.

In short, in my view, Ms. Gutierrez produced her unreliable report in
large part because she failed to exercise sufficient scholarly caution
about one influential, yet unaccountable, source. She did not seek out
other opinions. Her search of legal opinion was consequently flawed, as
she missed the key Supreme Court decision of May 7, 2003. She went beyond
her mandate, which was to explain whether the claims of constitutionality
made by the Honduran Congress were accurate, and instead provided a
speculative rationalization of their actions.

This report raises serious questions in my mind about the overall
reliability of similar reports from the Congressional Research Service. As
a scholar, I hope that you will take swift action to restore the
credibility of CRS and, by extension, the Library of Congress.

Rosemary A. Joyce
Richard and Rhoda Goldman Distinguished Professor of Social Sciences

Professor and Chair of Anthropology
University of California, Berkeley