Dennis Schornack was appointed to be the Commissioner of the International Boundary Commission (IBC) by the Bush administration. After a disagreement over the handling of a wall along the US-Canadian border, and the subsequent lawsuit, the Bush administration dismissed Schornack. Schornack maintains that his dismissal was unlawful, and continues to challenge it in court.
When Mr. Schornack left a comment on my blog last year I invited him to answer a few questions for my readers. At the time, he felt his hands were tied by the legal situation and declined. Luckily for us, he has had a change of heart.
What follows is Mr. Schornack's response to around a dozen questions I sent him last year. The hyperlinks were not present in the questions when originally presented, so it is not fair to assume Mr. Schornack was aware of the things I previously wrote at those locations.
Background
When you were offered the position of head of the International Boundary Commission, was it represented as a lifelong appointment?
When I was asked to be U.S. Commissioner for the International Boundary Commission, there was no mention of tenure, but then there was no mention of the treaty either. I read the treaty after I agreed to do the job in addition to my job as U.S. Chairman of the International Joint Commission. My intention all along was to resign when Bush's term was over, thus creating a vacancy for the next President to fill in accord with the treaty. That said, the treaty is clear as to how commissioners may come and go.
In general, when do you feel lifelong government appointments are appropriate? If, for example, the United States and Canada were to renegotiate the treaty that defines the IBC, would you argue for keeping the clause that suggests the Commissioner cannot be fired? And has your opinion changed since you started the job?
As for life tenure - that was never an issue - keeping the boundary clear of obstructions to facilitate security and maintain diplomatic harmony with Canada was the only objective. That said, I understand why the treaty was written as it was: There are times when border disputes must be settled by the Commissioners, and the Commissioners must be free from the direct political influence of their respective governments in order to stick to the treaty and stay neutral. The example of the Leus' wall is precisely one of those times. My "firing" was over a disagreement about how the treaty was being implemented - I went by the pure language about "keeping the vista clear of all permanent obstructions," and the DOJ was heading in the direction of favoring private property rights (keeping the wall).
The JobHow effective is the vista in terms of policing the border? Are there any statistics on how many people are caught illegally crossing the border due to surveillance made possible by the vista?
I can't comment on how effective border policing is - that was not our job. We simply supported Border Patrol and RCMP by keeping the vista clear of obstructions behind which people might hide. We often cooperated with BP and RCMP in that they would ask us to clear sections of the boundary that were troublesome - e.g., where there was evidence of human traffic like footpaths and trash. We worked those requests into our schedule for clearing. Also, BP and RCMP have begun to funnel money to the IBC for clearing projects they cannot do themselves because only IBC staff and contractors are authorized to work on both sides of the boundary line during a project. IBC employees get ID cards enabling free movement within the border zone.
I don't have any statistics on border runners being caught, but I know from experience that many cameras watch the vista and I assume that video surveillance contributes greatly to enforcement. Cameras cannot see through walls or trees or other obstructions.
The media have reported that the Leus' case is the only lawsuit on record against the IBC. Roughly how many uncontested notifications of vista violation does the IBC issue to border adjacent residents each year?
On average, the IBC issued 2-3 uncontested vista violation notices each year during my tenure. I once walked the boundary in Pt. Roberts (WA/BC border) with the Canadian Commissioner (at that time, Michael O'Sullivan) where the encroachments into the vista were on the CA side. Forty-three homeowners moved barriers, fences, etc. from the vista after a door-to-door person-to-person discussion. That experience and its results led me to suggest a personal visit to the Leus since we were going to be in the area anyway to hold a hearing on new markers for Boundary Bay. Otherwise, we could have simply sent a letter. As it turned out, the personal touch didn't work, but I still think the attempt was worth the effort.
I understand that the Canadian branch of the IBC has not issued its annual report in 8 years; is the US side just as far behind, and if so, why?
The annual reports of the IBC are behind schedule and have been for some time. The staff is small, and resources are scarce, so the reports have been on the back burner. We were working on bringing them up to date when the Leu situation hit the fan.
Canada has a law (the
International Boundary Commission Act) that clearly defines the size of the vista and the consequences of violating it. Is there a US law that matches the Canadian one?
The language of the Canadian law is taken directly from the minutes of the first Commission meetings where the width of the vista was agreed upon (initially it was 30 ft., but later changed to 20 ft.). The treaty is self-executing in the U.S. and there is no other law than the treaty itself. This has not been a problem since the treaty is so clear and the practices so well established. The Leu lawsuit is a first - for this reason it will establish a great deal about the strength of the treaties, the role of the IBC, and the role of the governments.
The ControversyYour legal representatives have both been (distantly) involved in unrelated controversy with the Bush administration.
Elliot Feldman once accused Canada of secretly financing the Republicans, and
Michael McKay's brother was one of the US Attorneys dismissed in 2006. Did their personal opinions regarding the Bush administration factor into your decision to retain them?
Peter and I chose our legal representatives based solely on their expertise in international law and experience in court. Dr. Feledman has written 7 books on international law, taught at Harvard, and had 20 years of experience litigating the softwood lumber cases. McKay is likewise highly experienced local counsel out in Seattle. The experience with Ca made my Ca colleague more comfortable.
The lawsuit contesting your firing is based on a literal interpretation of the 1925 treaty between the US and Canada. This same treaty also says that the Commissioner of the IBC must be an "Expert Geographer or Surveyor". Do you have experience that meets that requirement? If not, how do you justify requiring that parts of the treaty are honored while others are ignored?
I am not a licensed surveyor, but my deputy is, and it has been an established practice that so long as there is at least one licensed surveyor on each side, the commissioner need not be one. I was not the first non-surveyor to serve in the position.
What's Next?The media coverage of your case consistently refers to you as a "lifelong Republican". Would you still describe yourself like this?
"Lifelong Republican" is a fair description of my life up until recently. I have become a supporter and contributor to the campaign of Barack Obama because I believe that he is the stronger of the two candidates when it comes to honoring America's treaty responsibilities. McCain has said things that indicate he would follow in Bush's footsteps.
If you choose to not appeal
Judge Pechman's ruling, or if you exhaust all avenues of appeal, what do you plan to do next? Would you consider taking another political appointment if it was offered?
Your last question has largely been answered. I am appealing because I believe in the treaty, my oath to uphold it, and in an open boundary with Canada. Fences won't work on the Northern border and are repulsive to both Ca and U.S. citizens.
As you know, I am now the Exec. Director of the Michigan Recreation and Parks Association. I love my new job and especially the people I work with.
One thing i want to correct for your readers: Despite those who claim that I behaved like some power-crazed bureaucrat, they were not there. Peter Sullivan and I knew exactly what we were doing when we met with the Leus. We did everything we could to avoid being officious from dressing casually to listening carefully. We knew the Leus were not going to be happy about moving the wall, but we also knew that the border would fall like dominoes if we made an exception on the 49th parallel as requested by the Leus. We offered to pay for removing the wall, but we could not offer to rebuild it. We thought that by explaining and listening, we could avoid a dispute - i had witnessed such a successful approach in the past - but we were wrong.
Depicting me as an impersonal object of hate is a strategy that the Pacific Legal Fund loves to employ, but that is the political side of the lawsuit and one I must painfully endure. I was just doing a job to the best of my ability and understanding, and if I had it to do all over again, nothing would change. I am a simple person; I try to do what I believe is right every moment of my life; this approach has served me well.
Many thanks to Mr. Schornack for responding to the questions, particularly in such an open manner.
