The Weekly N&C -- Special Edition

He only was Koh-operating

There has been a little bit of a stir in the media since Saturday’s Op-Ed piece in the Wall Street Journal by U.S. Senator Jim DeMint (R, South Carolina) regarding his fact-finding trip to Honduras last week… while most of what he tells of is simply the situation as it stands politically between the United States government and the Government of Honduras, one part has gathered attention:

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.

Hm. That’s new.

Were there to be a legal opinion guiding the U.S. DeptState actions in this crisis, it would certainly be of note. Moreover, given well-presented legal arguments by such scholars as Miguel Estrada that the Government of Honduras acted fully within its Constitution in removing former-President Manuel Zelaya from office (although his then forcible exile was not), the opportunity to compare and contrast, if not contest the DeptState opinion would be exceptionally insightful as to why the Obama administration has taken the otherwise-difficult-to-explain course of action that it has to date.

Senator DeMint has not been able to see the “Koh legal analysis and Honduras Constitutional Report” as referenced by Ambassador Llorens, or even confirm its existence, he states. Well, this author has never let such little things as difficulty get in the way of doing his research… and out went the calls to some friends and old associates to see if a copy could be found.

Not.A.Chance.

Current lists of the nuclear permission codes are less closely held secrets than the Koh opinion, apparently.

But, in a wonderful moment of someone thinking through what it all meant *and telling me*, the entire matter became almost moot: It is a red herring. It may in fact be a ploy by Amb. Llorens perpetrated to deflect the Law Library of Congress Report on the Honduran Constitutional Law Issues regarding the removal of M. Zelaya from office.

Here’s what we do know:

The U.S. government response to the Honduran arrest of M. Zelaya was keyed off of a telephone call by the Zelaya regime’s Foreign Minister Patricia Rodas to the American Ambassador in Honduras, Hugo Llorens, claiming a violent overthrow of the government and all manner of abuses upon her person (none substantiated to date, by the by).

Within one hour of that telephone call, Dan Restrepo (Western Hemisphere advisor to the Obama National Security Council) was in action, directing the response. Within hours, he also had the Organization of American States queuing up an emergency meeting, which was then held scant hours later. This was followed by a media round up call by Restrepo to pre-selected favorable media to whom he laid down statements. (Notably, neither have those statements of June 28th held up to what evidence is out there, nor have subsequent statements by D. Restrepo and P. Rodas’ to the OAS and the media, been verified by any U.S. DeptState source. Many are simply unverifiable.)

Anyone notice time in there to get Harold Koh on the job to issue a legal opinion to guide DeptState’s course?

I didn’t think so.

This has been D. Restrepo’s show from the get-go; one that he went to a fair amount of trouble to keep out of the public eye for the first weeks of the situation, going so far as to insist on being “Administration Official #1” in those media briefings on background. It has only been since the Zelaya re-appearance and sequestration in the Embassy of Brazil in Tegucigalpa that D. Restrepo’s name has come out much at all… He showed up at the Americas Conference in Miami the first of this month and was tapped for an intererview by Andres Oppenheimer of the Miami Herald (the Herald was a co-sponsor of the conference, by the way). In that, the line taken was that “the President” calls it a coup.

That may be true now, but it very likely wasn’t so on day one.

It is also exceedingly likely that there was *no* legal opinion by H. Koh in hand on day one either.

Again, from one of those willing to talk to me:

Besides, Koh was asked for a legal analysis in June and again in July and released nothing to the Hill- ever. State Dept promised reports and 6 xxx said they were "too busy" and would get to it one day...

I’ll wager there is one now… but seeing the date it was issued is almost as important as the position it enumerates.

So why did Ambassador H. Llorens say such a thing to Senator DeMint?

Well…

It may well be that he thought he could sandbag a freshman Senator with a grand total of 10 years on Capitol Hill (Congress, 3 goes, before being elected to the Senate). His Foreign Affairs Committee staff is still pretty new at things, for example.

It may be that H. Llorens is desperately searching for any cover that will help him keep his job. He’s a hold-over, not an Obama appointee. One indication of this is that he’s been seen trolling around Representative Ileana Ros-Lehtinen (R, FL-18) begging support during the Congressional Delegation to Honduras… playing the fellow-Cuban-American card… and his being reminded in reply (paraphrase) “Fidel Castro also claims to be Cuban”…

The determined effort of those pleading the “I need to keep my job” argument also applies to any number of the regulars from DeptState involved in this Honduras matter. A surprising number of excuses are being made, privately. But there are others…

Senator John Kerry made it abundantly clear in his efforts to block the DeMint delegation from going to Honduras that any cooperation by DeptState for that trip was simply not going to happen. That DeMint managed to elude the blocking effort and get approval by other means actually does the first-term Senator credit, by the way. The entire pro-Obama faction in the Senate was lined up against his going.

So… to sum this all up:

Yes, there is reportedly –as stated by a sitting U.S. ambassador- a legal opinion out in DeptState land somewhere written by H. Koh regarding the removal of M. Zelaya from office by the Government of Honduras.

What it says, if its existence is ever confirmed, is of little importance. *When* he said it matters.

Because only by nailing down as a clear fact that an Advisor on the National Security Council with a history of undermining and playing for the other team was winging matters of state, playing on his own highly-placed status, for his own political constituent purposes (and those of his friends in far-away places), with neither deference to all the information readily available nor a constitutional role in setting policy for the State Department (that authority rests in the Presidency, via the Secretary of State), can the entire story of how the Obama administration ended up on the wrong side of the Crisis in Honduras begin to be told.

…and that is a story that needs to be told.

***

End Notes:

All footnotes are embedded as links in the text.

Private sources are known to this author, but choose to remain anonymous (for good reason).

The assertion as to Dan Restrepo’s “history of undermining and playing for the other team” specifically refers to his partisan acts rendering himself unsuitable for employment on the House Committee on International Relations by acting against the interests of then-Chairman Benjamin A. Gilman and the Committee at the behest of Deputy Secretary of State Strobe Talbott. Citation: Letter of February 20th, 1996, from Congressman Gilman to Congressman Hamilton (D. Restrepo’s employer) detailing the malfeasance and requiring his removal from Committee activity. Result: Quiet exile for Mr. Restrepo.

Fair Disclosure: This author is no fan of Parliamentary Diplomacy… the act of a representative of the legislature running off to engage in their own diplomatic efforts. I am against it when it happens in the U.K., in the U.S., and even here in Japan. The business of diplomacy is that of the Executive. I am only willing to cut Senator J. DeMint some slack this time because (a) He proposed no diplomatic initiatives of his own on his trip, it really was “fact-finding”; and (b) He is on the Senate Committee on Foreign Relations, including a place on the Senate Foreign Relations Subcommittee on International Operations and Organizations, Human Rights, Democracy and Global Women's Issues. Both the Democracy matters and the role of the OAS in this Crisis are within his purview.