Release the Koh Memorandum on Honduras

James Kirchik, writing in a recent issue of The New Republic, ponders the Administration continued insistence that there was a “coup” in Honduras.  He concludes:

In the immediate wake of Honduras’s constitutional crisis, it was understandable that the administration, caught by surprise, might jump the gun in its denunciation of the military action as a “coup.” Now, three months later and with legal repudiation from within its own government, U.S. policy has become a mistake in search of a rationale.

Among other things, Kirchik notes the Law Library of Congress analysis (noted here):

according to a recently released and widely overlooked report drafted by the Library of Congress, the actions the Honduran government took in removing Zelaya were consistent with that country’s constitutional procedures. Although the constitution does not contain specific information as to how a president can be impeached, the report did find that the Honduran Congress “used several other constitutional powers to remove President Zelaya from office.” Furthermore, the report also found that the country’s “Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.” In conclusion, the report, which was prepared by the Congressional Research Service’s Senior Foreign Law Specialist, determines “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, far from fitting the administration’s description as a “coup d’état,” the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous. The Obama administration’s position, predicated on its hasty conclusion that Zelaya’s removal was illegal, now appears squarely contradicted by the only known official analysis of the constitutional issues involved.

This last bit may need to be revised, as there appears to be another “official analysis” of the relevant legal issues, albeit one that has yet to be released.  According to an op-ed by Senator Jim DeMint, who just returned from a trip to Honduras, there is a State Department report authored by State Department legal advisor Harold Koh.

In a day packed with meetings, we met only one person in Honduras who opposed Mr. Zelaya’s ouster, who wishes his return, and who mystifyingly rejects the legitimacy of the November elections: U.S. Ambassador Hugo Llorens.

When I asked Ambassador Llorens why the U.S. government insists on labeling what appears to the entire country to be the constitutional removal of Mr. Zelaya a “coup,” he urged me to read the legal opinion drafted by the State Department’s top lawyer, Harold Koh. As it happens, I have asked to see Mr. Koh’s report before and since my trip, but all requests to publicly disclose it have been denied.

If this report is indeed the basis for the Administration’s insistence that there was a “coup” in Honduras, and its decision not to recognize the pending November elections in which Zelaya could not be a candidate even were he to be reinstated, it should be released to Congress and the public.  In the unlikely event that the legal analysis depends upon sensitive classified information, such material could easily be redacted.

The Honduran government has made numerous missteps, from forcibly removing Zelaya from the country to restricting press freedoms, but I have yet to see a legal analysis to plausibly explain how Zelaya’s removal from office (as opposed to his forced exile) was illegal or unconstitutional, and I have seen no analysis, legal or otherwise, that explains why the already scheduled November elections should not proceed as planned.   Yet Harold Koh is quite smart — and I readily admit he knows far more about this subject than I ever will.  So if he has an analysis that would support the Administration’s otherwise-implausible position, let’s see it.  If not, then the U.S. government should let Honduras determine the course of their own affairs.

UPDATE: For a legal analysis that supports the Administration’s position, see this article by Douglass Cassel of the University of Notre Dame Law School.  Harold Koh’s memo may well make similar arguments, but we can’t know for sure unless and until the memo is released.