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PERSPECTIVE Dick Thornburgh Interview Part III Puerto Rico’s Self-Determination Process: "I believe that when Congress does its job, the voters of Puerto Rico will do their job." - Dick Thornburgh
 OCTOBER 18, 2002 Former U.S. Attorney General Dick Thornburgh & Puerto Rico’s Political Status This week, the Herald presents Part III of a recent interview with former U.S. Attorney General Dick Thornburgh, conducted by Lina Younes, former Bureau Chief of Puerto Rico’s El Vocero. In it, Thornburgh compares Puerto Rico’s prospects for political status change with the experience of former U.S. territories in the Pacific islands. He also comments on locally sponsored plebiscites in Puerto Rico, concluding that they have been exercises in futility. "Congress needs to define the status options it considers to be legally valid and consistent with the national interest, so that the voters of Puerto Rico can act in their own interest to choose a status Congress is willing to implement." He is dubious of such initiatives as the Unity and Consensus Commission. "Unilateral local actions, based on a ‘consensus’ of partisan leaders acting in the political vacuum of a local constituent assembly, will not produce the desired result." In Part II of the interview, published in last week’s Herald, Thornburgh explains why it is inappropriate for Puerto Rico to pretend equality among sovereign nations. "Puerto Rico does not have an international legal personality or capacity to act in its own name and right, any more than the state of Oklahoma, Dade County, the City of Los Angeles or the territory of Guam." To the relative weight of the Puerto Rico Constitution, should its provisions conflict with U.S. law, Thornburgh cites a recent federal court ruling where the judge upheld a death penalty sentence for a crime committed in Puerto Rico, even though the local constitution stands against capital punishment. "For those in Puerto Rico who argued that the local constitution banned federal executions, or that Puerto Rico had not consented to application of the federal death penalty law, this ruling can mean only one thing — the local constitution did not create an unalterable bilateral pact based on mutual consent." Dick Thornburgh, who practices law with the Washington firm of Kirkpatrick & Lockhart, LLP, was Attorney General of the United States under Presidents Reagan and Bush and a two-term Governor of Pennsylvania. He is an expert on the U.S. federal government’s relationship with its territories and frequently writes and lectures on the subject. He is often invited to join panels of expert witnesses before committees of Congress when matters pertaining to Puerto Rico are before those bodies. Dick Thornburgh Interview Part III QUESTION: Why can’t the U.S. Congress legislate changes in the Puerto Rico Constitution, giving the island government more powers? ANSWER: The constitutional reality that must be faced includes the fact that Congress could adopt the commonwealth formula tomorrow, only to turn around the next week and repeal it. Congress can do that without the consent of Puerto Rico. What Congress cannot do is amend the U.S. Constitution to make all or part of the commonwealth formula permanent or constitutionally guaranteed. That is a basic fact that will not yield to any degree of political will. Thus, "enhancements" intended to compensate territorial residents for the injustices of disenfranchisement are temporary and not permanent solutions. That is why the profound dilemma of Puerto Rico’s stalled status resolution process is trivialized by the term "deficit of democracy". When a person as distinguished as Judge Trias Monge repeats his shrewd story about how even God’s powers are limited, so that surely Congress can agree to limit its powers, he is being clever to a fault. Because it is precisely the limits which the Constitution places on the powers of Congress that prevents Congress from giving Puerto Rico a status not provided for or recognized under the U.S. Constitution. If Congress could exceed its limited powers just because it has the will to do it, there would be no rule of law. In addition, sloganeering to the effect that "anything is possible if there is political will" also begs the question of whose political will we are talking about. Local will needs to be translated into national will before Congress can act, and the idea of Puerto Rico becoming a nation within our nation is losing rather than gaining viability as the world changes. Thus, Judge Trias Monge’s recent essays declaring historical notions of sovereignty obsolete, particularly in the context of territorial administration, appear to be quite wrong. During the decades-long Cold War era the U.S. may have found it expedient to accommodate unconventional territorial status arrangements, at least temporarily. In the post Cold War world, the ground rules for globalization, as well as new national security imperatives related to the plague of terrorism, make unconventional forms of autonomy far less appealing. Integration or separation based on historical principles of sovereignty, rather than sustained autonomy without clear status resolution, are much more realistic prospects than the notions of co-mingled and cross-delegated sovereignty envisioned by Trias Monge. To illustrate this point, the U.S. entered into elaborate free association treaties with three Pacific island nations for reasons that had little to do with political will of the island peoples to preserve their culture or identity. Instead, the U.S. had the political will to accommodate the aspirations of those island peoples due to the Cold War threat of a 600 ship blue water Soviet Navy in the world’s largest ocean. Ambassador Fred Zeder, who signed the Pacific island compacts for the U.S. and won approval of the treaties by Congress, has stated that, in his opinion, the U.S. will never go as far as it did during the Cold War to achieve decolonization. His reasoning is that only the Soviet threat and the strategic value of the islands at the time created a linkage between political status resolution and U.S. national security strong enough to create the political will needed to support the free association formula. Zeder’s prediction seems to be borne out by the fact that the State Department is proposing to reduce financial support for the free associated states in the Pacific now that the first fifteen-year term for financial provisions in their compact with the U.S. has expired. The State Department is also proposing to end unrestricted travel to the U.S. for any person from the free associated state intending to seek U.S. citizenship, requiring such persons to obtain an immigrant visa just like eligible people from any other nation intending to petition for naturalization. This reduction in U.S. commitment to sustain free association is being proposed by the U.S. State Department negotiators even though the U.S. still has vital strategic interests in the island nations that are party to the compact. For example, Kwajalein missile range in the Marshall Islands remains the most critical facility for development of the missile defense program. The free associated states of the Pacific are facing drastic alterations in the compact defining their status, which could make free association a halfway house to independence without association. Only if Congress decides that more discretionary funding and continuation of some limited travel privileges are needed to preserve U.S. strategic interests will free association remain viable. In contrast to the continuing U.S. strategic interests in the associated states of the Pacific, the U.S. strategic basing program in Puerto Rico seems to be headed for a phase down. Those who talk about negotiating free association for Puerto Rico need to explain how denial of the use of Vieques and a pull out of other U.S. military commands will stimulate the political will in Congress to grant favorable terms for Puerto Rico’s separation from the United States. In the case of the current negotiations with the free associated states in the Pacific, if the parties to the current compact of association do not agree on terms for its renewal and extension then free association continues without financial support. Of course, the entire associated state status and relationship can be unilaterally terminated at will by either party, which might happen sooner rather than later without financial support. That is what free association means, it is mutually agreed as long as it serves mutual interests. Without its terminability it would be colonial. In the truest sense, free association is based purely on political will, without binding legal status beyond mutually agreed terms. It also is worth noting that even though the Pacific islands that joined in the free association compacts were vital to U.S. strategic programs, the U.S. rejected free association with permanent union or U.S. citizenship. Those who point out that the Pacific islands that chose free association never had U.S. citizenship should be reminded that the residents of the Commonwealth of the Philippines had U.S. nationality which was lost in the transition to separate national sovereignty. If nationality is lost, all forms of statutory citizenship are lost with it. Thus, the Philippines precedent is consistent with the free association model for the Pacific island associated republics, particularly in rejecting the notion that political union and nationality, established during territorial administration, can survive the succession to separate sovereignty. The lesson is that political will and statutory policy simply do not secure a permanent constitutional status. QUESTION: Is the federal inaction on the Puerto Rico status debate due to the fact that Puerto Ricans have not come to Washington "speaking one voice"? ANSWER: I believe that Congress will approve legislation prescribing the terms for implementing any constitutionally valid status the voters of Puerto Rico approve. The larger the majority, in my view, the sooner transition to the new status will be approved. In 1994 Puerto Rico spoke with one voice, petitioning Congress to either approve the definition of commonwealth that won a plurality in the 1993 vote, or define constitutionally valid options it was willing to consider. Congress failed to act until 1998, when the House passed the Young bill. The local commonwealth party opposed the Young bill after the House rejected its proposed definition of that option in a bipartisan vote in Committee and on final passage by the House. Because the Young bill accurately defined commonwealth, the commonwealth party in the Puerto Rico Senate attacked it as a "statehood bill." If telling the truth about commonwealth is interpreted as favorable for either statehood or independence, that should tell you something. Congress needs to define the status options it considers to be legally valid and consistent with the national interest, so that the voters of Puerto Rico can act in their own interest to choose a status Congress is willing to implement. I believe that when Congress does its job, the voters of Puerto Rico will do their job. However, it does not resolve the status dilemma for Puerto Rico if 100% of the voters in a local process approve a status proposal that is unconstitutional. If there is a "consensus" in favor of a proposal developed by a locally controlled "constituent assembly" that merely repeats the same old "enhanced commonwealth" formula, this will only delay rather than advance status resolution. Between 1987 and 1997, Guam tried the "consensus" approach, attempting to shame Congress into accepting the will of the people in favor of a commonwealth formula very much like ELA. Congress ignored the Guam commonwealth proposals for ten years, and when Guam finally shamed the Congress into holding a hearing on the proposal, the Clinton Administration rejected the Guam consensus proposal as unconstitutional. The idea of forging a local consensus behind an unconstitutional status formula produced only delay for Guam, as it will for Puerto Rico. Perhaps that is the goal of those who argue that Puerto Rico can or should unilaterally define its future political status and present it to Congress. The "enhanced commonwealth" formula has been presented to Congress several times since 1952, and even during the Cold War, when there was much greater sympathy with Puerto Rico’s status dilemma, Congress never recognized its legal validity, much less approved it. The ultimate status of Puerto Rico as a non-territorial, non-colonial and self-governing people will not be achieved by local consensus in support of a status formula that Congress will not accept. Rather, the status of Puerto Rico will be resolved based on majority approval, in an island wide referendum, of a status option Congress has determined to be consistent with the U.S. Constitution and is willing to implement. Majority rule in just such an island wide referendum, sponsored by federal as well as local law, is precisely how the present commonwealth was established. In all likelihood, that is precisely how the status of Puerto Rico will be resolved as well. Unilateral local actions, based on a "consensus" of partisan leaders acting in the political vacuum of a local constituent assembly, will not produce the desired result. Instead, the duly constituted Legislative Assembly, and the Governor as Chief Executive of the local constitutional government, need to do the hard work of establishing a self-determination process recognized under both federal and local law. Only then will the people be able to freely express their wishes in a voice that both local and federal authorities will be able to hear. END OF PART III * * * In its entirety, Dick Thornburgh’s interview with Lina Younes is a comprehensive overview of the relationship existing between the local Puerto Rican government and the United States Congress. It is essential reading for those wishing to understand the background of the establishment of the Puerto Rico Constitution, the promulgation of which fifty years ago provided for a democratically elected island government but did not, according to Thornburgh, change its territorial, and essentially colonial relationship with the United States of America. The interview puts into U.S. Constitutional context claims made by autonomists, that Puerto Rico is not an unincorporated territory of the United States but rather a sovereign entity. Herald readers may access Parts I & II of this interview by clicking below, as indicated. Text of Part I of Dick Thornburgh’s interview can be accessed by clicking here. Text of Part II of Dick Thornburgh’s interview can be accessed by clicking here.
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