Friday, June 3, 2011

Backdated Charges?

Was the paperwork that provided the flawed legal justification for the coup backdated?

A cable recently posted to Wikileaks provides hints supporting this conclusion, widely held by opponents of the coup.

This cable, send on June 28, 2009 from Ambassador Hugo Llorens to the State Department, announced the forced expatriation of Zelaya. It notes that the Honduran military told the US Defense Attaché that they had acted on instructions from the National Congress and Supreme Court to prevent President Manuel Zelaya Rosales from carrying out the Cuarta Urna poll scheduled for that day.

However, the very next paragraph of the cable notes that members of Congress and the Public Prosecutor, Luis Rubí, when contacted by the Embassy, said they had only ordered the military to confiscate the polling materials, and had not requested that Zelaya be arrested.

Roberto Micheletti, when contacted by the Embassy that day, repeated the claim that Zelaya had planned to convene a National Constituent Assembly right after the poll, and "that Congress had acted to preempt him."

The contradiction between what Micheletti, then head of Congress, and other members of congress told the US ambassador simply underlines what has long been clear: Micheletti and other agents of the coup deliberately ignored due process, denying many members of congress who opposed the coup the right to participate in the voting that attempted to legitimize the coup after the fact on Sunday morning.

But the reported comments of the public prosecutor, Luis Rubí, add something new to the mix.

Shortly after the coup, the Supreme Court posted online voluminous documents they claimed justified the actions legally. This included a long legal case, said to have been filed by Rubí under a request for secrecy, dated June 26, two days before the coup.

This date would have come just after Ambassador Llorens had a conversation with Chief Justice Jorge Rivera Aviles, in which Rivera Aviles said the only way a sitting president could be constitutionally removed from office was through the Public Prosecutor filing a criminal case with the Supreme Court, and being adjudicated guilty of a crime.

Yet on June 28, Luis Rubí denied to Llorens that he had requested the arrest of Zelaya; the military did not say they were acting for the Public Prosecutor; and Micheletti attributed the orders to "preempt Zelaya" to Congress, not the Supreme Court or the Public Prosecutor.

Either the Supreme Court paperwork was backdated to June 26, or everyone was lying to Ambassador Llorens on June 28.

A subsequent cable dated July 2, 2009 contains a timeline of events written by Ambassador Llorens to the State Department.

This timeline has no entry for charges filed by Public Prosecutor Luis Rubí on Friday, June 26, as claimed in the documents posted by the Supreme Court.

It only states that on June 30, e.g., two days after the coup d'etat, that Rubí filed 18 charges against Manuel Zelaya Rosales, in an ordinary criminal court, following a document issued by the Supreme Court that categorized Zelaya as a private citizen as a consequence of the congressional actions of June 28.

Llorens writes:
While there have been claims that the Supreme Court issued a warrant for Zelaya's arrest, the president of the Supreme Court has told us that this is not true. The only warrant we are aware of is one issued either late on June 25 or early on June 26 by a lower court ordering the seizure of polling material. It appears that the Attorney General, the military conspired with Micheletti and other leaders of Congress to remove Zelaya based on their fear that he planned to convene a Constituent Assembly immediately after the June 28 poll.
Either Rivera Aviles was lying to Ambassador Llorens, or there was no arrest warrant issued on Friday June 26, secret or otherwise, as stated in the Supreme Court documents.

These cables also go to the heart of the justification offered for the actual timing of the coup.

The crux of the justification is the allegation that Zelaya was going to call a National Constituent Assembly right after the Cuarta Urna poll. This was a rumor spread by the online newspaper Proceso Digital. On June 27, 2009, it falsely claimed that the proclamation establishing the Cuarta Urna published in the official Gaceta said this.

Llorens writes on July 2:
The online newspaper Proceso Digital prints an article alleging Zelaya's decree, published in the 25 June issue of the official paper La Gaceta, states that the 28 June poll will immediately convoke a constituent assembly. The newspaper reports that Zelaya has changed the rules at the last minute, and the poll will have consequences not previously reported.
This fits. It's the justification provided by Micheletti to Ambassador Llorens for the coup d'etat on the day of the coup. Llorens continues:
Micheletti's supporters say that publication calls for the convening of the Constituent Assembly. However, this is patently false, the publication simply states: "Are you in agreement that in the general elections of 2009, there be a fourth urn in which the people decide the convocation of a National Constituent Assembly."
What these cables are clarifying is precisely how much evidence there is for a conspiracy to sanitize the coup d'etat, a conspiracy that included producing documents purportedly from the Friday before the coup, documents that on the day of the coup, all involved disclaimed.


phoenixwoman said...

While I don't in any way discount your analysis, I would point out that the cable of 6/28 can't be regarded as definitive, since it's obviously being put together on the fly. Some of the information appears to be inaccurate, and there are definitional gaps that, to my mind, need to be sorted through.

It asserts that the military entered the Presidential Palace at 2:30 AM. As I understand it from Zelaya (and confirmed in the second cable), it was 5 (or 5:25) AM. It states that he was taken to the Airforce base "adjacent to Toncontin," arriving in Costa Rica at 7:30AM. I don't see how this could refer to Palmerola, and I question the time of arrival in Costa Rica. News reports were fuzzy, but I had the impression it was mid-late morning.

I think the question of whether "the Supreme Court" had ordered the arrest may be too vague. According to the paperwork presented by the Court, one of its members had authorized an arrest. It's not clear to me that the prosecutor would have had to file charges for a judge to order an arrest to initiate questioning. And who were the members of Congress? While I don't doubt that Congress had not authorized an arrest, some members of Congress were in the dark.

The Honduran elites are such prolific liars that one wonders whether it is more recreational than functional. I don't doubt that they backdated or outright forged documents. But I think the evidence points to three separate avenues by which efforts to remove Zelaya were undertaken, each avenue being promoted by one element of the American government. For some reason, they decided they needed to move swiftly, so rather than just shut down the plebiscite and deal with Zelaya at their leisure, they went ahead with the coup before having decided on a unified course of action. My guess is that US military/intelligence got impatient, not understanding the ramifications of failing to have a solid cover story.

Once the pooch had been well and truly screwed, there was nothing but to fabricate reasons.


phoenixwoman said...

One other point.

The Wikileaks cables are lowest level of classification. I would be very interested to learn what the military/intelligence communications were like. Zelaya, in a DemocracyNow interview, absolved Llorens of complicity in the coup. My guess is that is correct: that Llorens was trying to get the Hondurans to follow at least a reasonable semblance of due process but was competing with two other power centers: US military/intelligence and US congressional Republicans, each of which had different ideas about how things should be done.


RAJ said...

Just a quick note given the time-- yes, there are problems with the June 28 cable but getting the time of the raid wrong is not, in our view, the same thing as saying Rubí told him he had not filed charges.

If this were the only place that doubt was cast on Rubí actually having filed those papers when they are dated, that would be one thing. But Honduran sources insist the date was a forgery.

We can, I think, clear up your confusion about the reference to taking President Zelaya to the air base adjacent to Toncontin. That refers to the military post at the Tegucigalpa airport, not Palmerola. Zelaya was flown from Toncontin, on a military flight, stopping to fuel at Palmerola. (Wikipedia suggests the military facility at Tegucigalpa is called the Hernan Acosta Mejia Air Base.)

We can check the timing of the departure and arrival for you, but the raid was pre-dawn (which is what made it unconstitutional) and so arriving in Costa Rica around 7:30 is not out of the question.

I am too tired to understand your comment about the Supreme Court case, but for the record: the dated materials say that Rubí riled charges that were accepted for action by the court on Friday, June 26. Those were the charges of treason, abuse of authority, etc. The documents are unambiguous.

phoenixwoman said...

On the airport issue, I agree with you, just think that a touchdown at an American base was not something that an ambassador would miss. It's a critical detail that entered into how the coup and kidnapping was perceived. The implication is that the ambassador was unaware of the re-fueling stop.

As for the Supreme Court, I looked up the arrest warrant among the Supreme Court filing. Clearly Rubi could not both have filed a warrant and truthfully told Llorens that he had not. And both documents in the Supreme Court filing relevant to the arrest, are dated June 26th. So, either Rubi lied in claiming not to have issued an arrest warrant, or the people who signed the arrest warrant lied in claiming to have received an arrest warrant from Rubi. The one issued by Tomas Arita Valle speaks of a "requerimiento fiscal que antecede y documentos acompanados e interpuesto por el Ministerio Publico". A summons isn't quite the same as an arrest warrant, and it's not quite clear that the summons is issued by the Ministerio Publico.

The signatures on the other are illegible, but one resembles that of Tomas Arita Valle, and the other seal belongs to the court secretary. This is directed to Lieutenant Colonel Bueso, and is an order to arrest.

Is it possible that Rubi issued a summons, and that this was escalated into an arrest warrant by Tomas Arita Valle? Or that someone other than Rubi asked for an arrest?

I am not putting these forward with any likelihood that they are the correct explanation. It seems much more probable that the paperwork was forged. But in trying to reach firm conclusions, one must also play devil's advocate.


RAJ said...

Our analysis of the 86 page documentation posted by the Supreme Court summarizes what was supposedly authorized:

the Supreme Court had secretly authorized the army to raid President Zelaya's house, supposedly because he represented a risk of flight.

The precise language was

Finding sufficient merit concerning the commission of the actions, an order of capture is that [the military] will place under judicial authority [President Zelaya], and once having done so take the statement of the accused.

The raid authorized was specifically constitutional in timing: between 6 AM and 6 PM. That was violated.

In a separate post we provide translations of the Supreme Court's own actions, as recorded in the 86 pages of documents. The initial reference to a "preceding requirimiento" is to the complaint filed by Rubí.

We see only two choices: either Rubí filed his documents, as stated, on June 25 and the court issued the order of capture (arrest warrant) as stated on June 26; or these documents were created post facto and back dated.

The arrest warrant was issued by the court, not the public prosecutor. He did not have that power. The court documents say that they were to facilitate taking Zelaya's statement.

The action is described as "capture" or as "place him under the command of the corresponding authority" in the two distinct versions the court issued.

Again, we think our analysis is correct here.

As for Llorens not mentioning the refueling stop: I would suggest it was not, in his view, an "event". Palmerola is the US base; Soto Cano is the Honduran air base at the same location. The US does not have control over Honduran landings at Soto Cano. (This is what makes me less enamored of the conspiracy theories in which this refueling stop is direct evidence of US complicity.)

phoenixwoman said...

OK, I see that wrt the summons and order for capture, you are referring to Punto No. 12, dated June 26th (not 25th), in which the Public Minister requests an arrest. So, if on the 28th Rubi denied he had issued an arrest warrant (as 09TEGUCIGALPA504 says), he was either lying or the documents have been backdated.

Notice that the document that follows this request, stamped by the Secretary, begins mid-word, a bit of an oddity. The document that follows that one, apparently signed by seven justices, is dated the 29th. I am still not finding any indication that as of the 28th anyone on the court besides Tomas Arita Valle had seen Rubi's filing.

As for labeling the belief that the landing at Palmerola indicated American involvement is a "conspiracy theory," pfft.

There's a far more appropriate word, namely "speculation." The landing is a fact. If one believes that American intelligence pays no attention to unscheduled planes landing on a jointly operated facility, then the landing proves nothing. If one believes that American intelligence does pay attention to such things, then it implies coincident knowledge of the coup and perhaps foreknowledge. But "conspiracy theory" is a broad brush term of denigration used to discount beliefs one disagrees with. In this case, it denigrates many Hondurans.

As for Llorens, he may not have believed that the landing was an "event." If so, then evidently he was wrong, since that "event" strongly influenced the interpretation of what happened. Since he seems to be a very professional and experienced diplomat, I think that had he known it had taken place, he would have reported it.


RAJ said...

Look, I am not clear precisely what you are objecting to. I think the record of what is in the Supreme Court-posted documents is clear. Including the fact that some documents were only posted in part-- hence the document that starts mid-word.

I am not denigrating any Hondurans, and today, for a lot of reasons, I resent that. Soto Cano is not "jointly operated". It is the parallel Honduran operation through the same locale as the US Palmerola.

I don't find it impossible to imagine that on June 28 Llorens did not (yet) know that the flight had stopped at Soto Cano for refueling. But my point was: you used what you thought was an identification of Toncontin with Soto Cano to argue that the ambassador made mistakes in the cable. I noted that this was not a mistake.

My reason for pointing this out is that the core thing we are underlining in our post is that on June 28, the ambassador reported that Luis Rubí stated that he had not filed charges.

Since we both agree now that the Supreme Court documents include purported charges from June 26, I think I have proved my point.

Ardegas said...


So far, the only evidence for backdated charges are these Wikileaks documents. I doubt these could be admitted as evidence in court. So it's not true this "has long been clear", as your article claims.

RAJ said...

@Ardegas: you are misreading the post. The specific phrase "what has long been clear" refers to the vote taken, quite illegally, on June 28 by the Honduran Congress, through which they purported to replace President Zelaya with Roberto Micheletti.

By the laws governing the convening of the Honduran Congress, the session on Sunday June 28 was illegal. The claim circulated in pro-coup newspapers shortly after, that the vote was "unanimous", was almost immediately falsified by congress people who testified that they had not voted for this illegal substitution. (Motivated readers might want to read this post.)

As for the question of whether the documents dated June 26, purportedly filed that day by Luis Rubí, were backdated, yes, this Wikileaks cable is the most concrete indication of potential backdating yet.

While we have never said this backdating was "clear", we would note that it has been an assertion by the opposition to the coup since at least since July 2009. The arguments for backdating of the Public Prosecutor's documents were posted by the Zelaya administration on a website that appears no longer to be accessible.

Among other things, the undeniable fact that a forged "letter of resignation", read to Congress on June 28, was itself backdated to June 25, tends to support the idea that the authors of the coup were not averse to faking documents to support their actions.

The issue is not whether something is admissable as evidence in a court of law-- although we would note that direct testimony by the former Ambassador about his conversations with Public Prosecutor Rubi would indeed be admissable in courts in the US and Honduras.

But we are concerned with the historical record. And the historical record casts a dubious light on all the documents used to try to cast an aura of legitimacy over the coup d'etat.

RAJ, for RNS, who is traveling

Ardegas said...

The arguments for backdating of the Public Prosecutor's documents were posted by the Zelaya administration on a website that appears no longer to be accessible.

If you have the URL you can run it through and get a snapshot of the website. I have read some Edmundo Orellana's articles and he seems to be unaware of this backdating of charges.

Who are the Zelaya's officers making this accusation?

Among other things, the undeniable fact that a forged "letter of resignation", read to Congress on June 28, was itself backdated to June 25, tends to support the idea that the authors of the coup were not averse to faking documents to support their actions.

I would believe it's harder to forge official legal documents than to forge a letter of resignation.

RAJ said...

Sorry, we're done here. You are having an argument with yourself, and I have more current things to do.

You are welcome to read and make your own decision about whether the documents supposedly dated June 26 were actually submitted then. But at this point, it is clear that what you are doing is reserving the right to make a conclusion while demanding proof of even factual statements.