JOL Online Article

Overcoming the Partisan Divide to Address Long-Range Risks: A Case Study in Planning for ‘The Really Big One’

January 8, 2023 by dhimelman

* David Frockt and ** Kenneth Fockele

America has a systemic governance problem. The country that once came together to solve big challenges—through endeavors such as the New Deal, the Interstate Highway System, and the space program—now suffers a partisan and policy divide so deep that we seem incapable of meeting the moment even when inaction threatens us all.

At both the national and state levels, constitutional structures and deep political divides make progress difficult. Federal legislation often runs into the roadblock of the Senate, while state legislatures—even those without internal filibuster rules—frequently face their own procedural hurdles. The United States Senate was conceived of as “a temperate and respectable body of citizens” that could cool the passions of the people and take a longer-term perspective than the House of Representatives,¹ but today it has become as much a bottleneck as a “cooling saucer.”² Wyoming and California have the same number of votes in the Senate on climate change policies. A majority of the U.S. Senate now represents a minority of the U.S. population.³ And yet the Senate refuses to change its rules on the filibuster to allow for majority action on even the most pressing of our collective problems.⁴

In the Washington State Legislature, there is no self-imposed filibuster, but constitutional requirements for supermajority votes on various financing mechanisms give veto power to electoral minority blocs. This can prevent critical expenditures necessary to solve major problems, particularly problems that are not perceived as urgent.

In Washington state, one such problem, deadly serious but seemingly not imminent, is the woefully inadequate state of public-school buildings to withstand earthquakes and tsunamis. Scientific research in recent decades has revealed that seismic activity presents a much greater danger in Washington state than previously thought.⁵ Every student should have a safe place to learn. That is one of the government’s most fundamental responsibilities. But right now, students in schools across the state, and especially in low-lying coastal areas or geologically active regions, are at risk when a seismic event inevitably strikes.

In 2022, the Washington State Legislature overcame the forces of political inertia and passed Senate Bill 5933, establishing a landmark program addressing the catastrophic risk that earthquakes and tsunamis present to children in the care of public schools—a risk that may not even occur in the lifetime of any legislator currently serving.⁶ What happened offers a window into how, with a spirit of goodwill, compromise, and creative tactics, other long-range policy problems might move past partisan stalemates.

The Risk of ‘The Really Big One’

Wildfires and even volcanic eruptions are well-known risks of living in Washington state. Earthquakes, however, have not held the same urgency for Washingtonian policymakers. That began to change in 2015, when the New Yorker examined the risks associated with a cataclysmic seismic event occurring on the Cascadia Subduction Zone, which runs 80 miles off the coast from Cape Mendocino in northern California to northern Vancouver Island off the coast of British Columbia.⁷

The article described in vivid detail what likely happened on January 26, 1700, when an estimated 9.0 earthquake on this tectonic fault caused devastating tsunamis in both Japan and what is now known as the American Pacific Northwest, wiping out villages in the Japanese islands and native villages along the coast of what is now Washington and Oregon.⁸ Importantly, scientists estimated that when “the big one” occurred, the tsunami wave hit the Northwest Coast in perhaps as few as 15 minutes.⁹ Even more importantly, they predict there is another “big one” in our future, and there is no telling precisely when.¹⁰

The 2015 New Yorker article brought our region’s seismic risk to a broader audience, but knowledge had been growing for some time in expert circles, as the Seattle Times reported in 2016.¹¹ It is hard to overstate how influential the New Yorker article was in Washington state policy circles, perhaps because it minced no words about the risk. As the article bluntly explained: “When the next full-margin rupture happens, that region will suffer the worst natural disaster in the history of North America, outside of the 2010 Haiti earthquake, which killed upward of a hundred thousand people.” One of the preeminent experts cited, Chris Goldfinger of Oregon State University, put the odds of a catastrophic quake—“the really big one”—happening here in the next 50 years at one in three, in a state where public-school buildings are woefully unprepared for even lesser earthquakes or tsunamis.

Washington’s West Coast Seismic Gap

What policymakers clearly failed to grasp at the time the article was published was that our sister coastal jurisdictions in the U.S. and Canada were far, far ahead of Washington in addressing the safety of public schools.

California tightened seismic standards for schools with the Field Act in 1933.¹² A long history of significant earthquakes in the state provided ample motivation for lawmakers to ensure that schools were built or retrofitted with safety in mind.¹³

British Columbia and Oregon, though they have a seismic history more similar to Washington’s, have been comparatively quick to take note of the emerging science on the seismic danger presented by the Cascadia Subduction Zone. Beginning in 2004, British Columbia enacted a seismic mitigation program that has since spent $1.9 billion to retrofit or replace public school buildings in high-seismic-risk areas.¹⁴ As of July 2022, the province had completed work on 205 schools, with another 291 potential candidates identified for future work.¹⁵ In Oregon, under legislation passed between 2005 and 2009, the Seismic Rehabilitation Grant Program began providing public school districts with bond-funded grants of up to $2.5 million per building for seismic retrofits.¹⁶ In fiscal year 2022, the grants awarded totaled $37 million.¹⁷

By contrast, Washington had taken no steps of significance until 2018, when the Legislature commissioned the first study of seismic safety in the state’s public schools.

Barriers to Action in Washington State

Washington has lagged behind our sister states and provinces in making seismic improvements for its most at-risk public schools for at least three reasons.

First, Washington has a unique approach for school capital financing that makes it difficult to approve funds for seismic safety improvements. School construction has historically been funded from a combination of both state and local sources, with local funding predominant.¹⁸ However, Washington’s state constitution requires that school districts wishing to issue bonds for construction receive the approval of 60% of local voters in an election.¹⁹. This high bar has led, in recent decades, to a series of school construction bond failures, particularly in poorer, rural, and coastal communities.²⁰. According to legislative staff tabulations, from 1990 through February 2022, 630 local school bond measures have failed at the ballot box in Washington state despite garnering a majority of the vote.²¹ Under a simple majority system, all of those bond measures would have passed, which might have led to a significantly higher number of new, renovated, and presumably seismically safer school buildings around the state.

Second, changing the constitutional threshold for local bond approval to 50% plus one, to make it easier to raise local funds for school construction, is a tall political task. As with any amendment to the state constitution, it would require a supermajority vote in each chamber of the Legislature, followed by a majority vote of the people in a statewide election.²² As with our counterparts in the U.S. Senate who govern under the filibuster, the Legislature has failed to muster a supermajority when the issue has come to the floor.²³ The bond threshold continues to divide majority Democrats who favor a majority vote on these property levies and minority Republicans who do not.²⁴

Even if such a constitutional amendment were to pass the Legislature, it is not clear that the electorate would approve the change. Though by many metrics Washington is a progressive state, the electorate has frequently voted against measures that would allow increased taxation at the state or local levels.²⁵ Indeed, beginning in the early 1990s, voter-passed statutory initiatives required a two-thirds vote in the Legislature for any tax measure, thereby ensuring minority veto power over basic government funding decisions involving taxation.²⁶ Under those initiatives, the Legislature was prevented from passing virtually any revenue legislation on a simple majority vote until 2013, when the Washington State Supreme Court ruled the restriction unconstitutional.²⁷

Third, for the past decade, statewide education funding conversations in Washington were dominated, to the exclusion of all other topics, by the ramifications of the 2007 lawsuit McCleary, et al. v. State of Washington, accusing the state of unconstitutionally failing to fully fund public education.²⁸ This suit led to years of work in the Legislature, culminating in a significant increase in baseline education funding in 2017. The Washington State Supreme Court finally ruled in 2018 that the state was fulfilling its constitutional duty.²⁹ Only after this milestone was there enough spare political oxygen in Washington state to nourish discussion on another major funding issue related to schools.³⁰

Laying the Groundwork to Unify Policy and Funding

Despite numerous barriers to action, sober media coverage propelled the Washington Legislature into action. Reporting that frames a problem as one of systemic failure across all levels of government, rather than as one of partisanship, heightens its relevance and compels politicians to take on the issue. In this case, a series of articles by the Seattle Times between 2016 and 2018 was critical in highlighting the region’s overall lack of readiness for a Cascadia subduction event, including specifically the risk to children in un-retrofitted public schools.³¹

To build support for solving a long-range risk that may require sustained action, policymakers must first establish a definition of the problem that can be sustained over a long period of time. They must develop a basic knowledge of the extent of the risks and provide a framework for discussion that can capture and maintain the attention of lawmakers over the number of years it will take to successfully address an issue of this complexity and magnitude.

In Washington, the first step in this approach came after Democrats took the majority in the state Senate in 2018. At that time, I was appointed by my colleagues to lead the capital construction budget for the Senate.³² The state’s primary tool for funding school construction is the capital budget, traditionally an area of bipartisan cooperation largely because a significant part of its funding comes in the form of general obligation bonds.³³ The Washington state constitution requires that these bonds can only be issued if approved by a 60% vote of each legislative chamber.³⁴

In 2018, the Legislature’s capital budget appropriated $1.2 million for the state Department of Natural Resources (DNR) to conduct what appeared to be the first comprehensive statewide school seismic needs assessment.³⁵ DNR’s School Seismic Safety final report, released in 2021, showed that 93% of public-school buildings sampled statewide are at high risk of serious damage during a significant earthquake or tsunami.³⁶ The greatest risk is to schools in the western part of the state, especially in low-lying coastal Pacific areas, which face both threats.³⁷

This final report garnered significant attention from the Seattle Times, again galvanizing the kind of reaction among the public and elected officials going into the 2022 session that could lead to a more robust policy and funding response.³⁸

Negotiating a Bipartisan Bill

Opening Negotiations in Good Faith

In response to DNR’s final report and renewed press and public interest in how the Legislature might address the vast funding and policy challenges it showed were needed, my colleague Sen. Mark Mullet (another Democrat involved with the capital budget) and I began discussions with staff and experts to address possible approaches.³⁹ In private conversations, some key legislators advocated using one-time money from federal pandemic-related sources as well as revenues from a growing Washington state revenue forecast.⁴⁰ The Office of the State Superintendent of Public Instruction (OSPI) publicly proposed a modest allocation of $8.5 million to complete six seismic retrofit projects that had been previously authorized in the 2020 budget.⁴¹ The general thinking at the outset was that this was just another budget problem that simply required a yearly appropriation.

Unfortunately, this approach potentially made seismic upgrades subject to piecemeal funding without an overarching defined policy goal of systematically upgrading schools. Indeed, the DNR report did not and could not quantify the overall cost to upgrade the most seismically dangerous schools, instead offering a range of $63,000 to $15 million per school given the particulars of location and building age.⁴² Even today, the cost to achieve the goals identified in the DNR report is not fully known but is clearly going to run into the billions of dollars over the next decade or more.

In late 2021, no one was advocating for a statute codifying a new program of sustained investment toward an unknown expenditure, much less incorporating both local and state funding for areas that have historically been unable to pass local school bond construction measures.

These initial discussions in late 2021 led me to draft legislation that would have funded seismic upgrades through the existing school construction funding mechanism (known as the School Construction Assistance Account), which triggers state financial assistance only when a local district has passed a construction bond with a 60% vote. This proposed legislation, however, would have reduced the threshold for local bond votes to a simple majority when and only when the purpose of the local bond was to help upgrade at-risk schools.

Given the grave risks presented in the report, the thinking was that the promise of state funding might help to break through the normal local opposition during the campaigns for these bonds and put more bond votes over the top with a simple majority. We also thought the seriousness of these newly salient seismic risks might create an opening to make inroads to gain Republican support in the Legislature for this approach.

We were wrong.

Preliminary discussions with our key Republican colleagues responsible for the capital budget, indicated that lowering the 60% threshold remained a nonstarter. Nevertheless, Sen. Mullet and I still concluded that putting a process in statute, rather than merely making a budget appropriation from year to year, might establish a forced function dynamic that would spur future budget writers to transparently accept or reject state funding for schools most at risk. Such a statute, if it transparently ranked projects in most immediate need of funding (a process that the state community colleges have used successfully for years), would be most likely to prevent budget writers from punting on the funding assistance for seismic upgrades needed in any given year.

Additionally, even though our outreach to our Republican colleagues, Senator Jim Honeyford and Senator Mark Schoesler, did not gain their support (the initial draft was scrapped before being officially filed), the process of bipartisan engagement set the right tone.

Several pre-existing factors contributed to this. One was that, historically, capital expenditures have almost always been bipartisan. While the state’s operating budget depends more directly on tax revenue and funds many of the programs that the parties have philosophical disagreements about, the capital budget funds the kind of infrastructure that, broadly speaking, both parties in Washington agree fall under the responsibility of the state government. In addition, while local district projects supported by individual legislators are a small part of the overall capital budget, they have a catalytic effect on overall support when major initiatives are presented in the rest of the capital budget. Indeed, projects that benefit multiple districts often bring together legislators of both parties in support.

Another factor contributing to the positive tone was that in recent years, after unified Democratic control of the Legislature began in 2018, operating budgets have passed on time.⁴³ Concurrently, capital budgets have also passed on time and always unanimously or nearly so.⁴⁴ This meant that there was a reservoir of collaboration and a history of working together on this important part of the budget process in recent years, even while the typical differences between Republicans and Democrats on other fiscal matters remained wide.

Perhaps just as importantly, when trying to solve a serious problem, refraining from easy political shots should be the norm, not the exception. Democrats could have used Republican opposition to simple majority to argue that “Republicans are just not interested in protecting school children from earthquakes and tsunamis and are hiding behind a rule to subvert majority will on most local school funding decisions.” We chose not to make such a provocative statement because it would have soured our discussions.

Republicans, meanwhile, though unwilling to soften their opposition to a simple majority requirement on local property tax votes, resisted the urge to frame our initial foray as simply “another effort by Democrats to make it easier to raise your local property taxes.” They too showed restraint—perhaps because of the initial, even if unsuccessful, constructive engagement the majority undertook. Legislators who were in the political minority were sought for their consultation and input on a major policy problem.

As a result, the takeaway from our initial discussion was constructive: we agreed to disagree on the simple majority question, and to keep talking about a problem that we agreed is important and affects our entire state—rural, urban and coastal.⁴⁵

Incorporating Bipartisan Viewpoints

As noted above, the first effort at crafting this legislation failed. One option would have been to acknowledge an impasse on a tax question that has presented problems for years; make short-term, ad-hoc appropriations in the budget; and be done with it. However, one of the most underrated skills in lawmaking is creativity and the second-most underrated is persistence. Consequently, we stayed with it and looked for a different way forward.

The second version of the legislation we drafted moved away from the traditional school construction assistance model. Instead, it established a new grant program to provide direct state funding toward the cost of replacing or seismically retrofitting school buildings in high seismic areas or tsunami zones. The most at-risk schools would be ranked by an advisory committee established through the state superintendent’s office, which would prioritize risk zones as designated under U. S. Geological Survey (USGS) criteria.⁴⁶ The state superintendent would be required to submit a proposal for funding that would then be ranked in time for the governor to include in his or her annual budget proposal to the Legislature. The grants would pay two-thirds of the cost of replacing or retrofitting eligible school buildings—those built before 1998 and not retrofitted more recently than 2005—with funding not predicated on the passing of a local bond.⁴⁷

This ranking system was readily accepted by my colleagues, in part because it resembled one that has been used successfully for many years to prioritize capital projects at public community colleges that exist in 34 separate districts around the state, encompassing both Republican- and Democratic-leaning areas. One advantage of the seismic ranking system is that it would use an objective list produced by a third party, composed of scientists. In addition, the areas that will benefit the most from the funding, low-lying coastal areas, are some of the last in the state to be represented by both Democrats and Republicans, bringing in bipartisan support. Also, despite the concentration of high-need school districts on the coast, school buildings in very different areas around the state are at risk—in regions that are Democratic and Republican, rural, urban, and coastal.⁴⁸

Significantly, this version of the bill appropriated $500 million for school seismic upgrades outside the state’s statutory debt limit. To go outside the constitutional debt limit, the $500 million fund would have to be formally approved by voters at the next election.⁴⁹

The bill was introduced on January 24, 2022, with the lead sponsors being all four key capital budget writers in the Senate—myself, considered a liberal democrat from Seattle; Sen. Mullet, a moderate Democrat from the Seattle suburbs; and Sen. Honeyford and Sen. Schoesler, two of the most conservative Republicans in the Senate.⁵⁰

As sponsors, we began to jointly promote the bill as a bipartisan solution and undertook a key media appearance together—a liberal Democrat from Seattle joined by a conservative Republican from Eastern Washington. As Sen. Schoesler told the Seattle Times editorial board: “It’s a statewide issue. Putting statewide debt into it doesn’t bother me.”⁵¹ Despite representing a district that was not threatened by earthquakes or tsunamis, he viewed seismic safety as fundamentally similar to our state’s approach to fighting wildfires or other emergencies of the type that do present a disproportionate danger in his district, where the responsibility lies with the entire state.

Bringing the Rest of the Legislature on Board

This strategy succeeded in generating broad support for funding seismic upgrades at a significant level. However, not only more fiscally conservative members but key Democrats on the Ways & Means Committee remained concerned about going outside the constitutional debt limit. The state treasurer, also a Democrat, also expressed to me his preference for remaining inside the debt limit.

There were three reasons for these concerns. First, Washington’s fiscal governance in recent years has garnered upgrades in status by the major credit rating agencies.⁵² Moving outside of our internal debt limiting structures, while perhaps not materially significant at this specific funding level of $500 million, could set a precedent for loosening fiscal constraints in future years, thereby affecting the state’s credit rating and increasing borrowing costs. Second, during discussions it became clear that OSPI and individual school districts were unprepared to spend $500 million in the upcoming biennium or perhaps even the next two. There were simply not enough shovel-ready projects, and more time would be needed for design and engineering. Finally, if the voters did not approve lifting the constitutional debt limit for this specific purpose, everything would go back to square one.

After the hearing on the bill, it became evident that the legislation was not likely to have enough support to pass the Ways & Means Committee with the funding mechanism outside the debt limit. On the other side of the coin, there was strong support for passing a law to establish a formal, ongoing program to spur future legislatures, OSPI, and school districts to prepare a project pipeline and keep a steady stream of funding going for seismic upgrades. Funding would have to occur annually through the normal budget process, rather than being predetermined by a large appropriation this year, but at least there would be a formalized structure in place for sustained investment.

A new version of the bill removed the new bonding authority and the referendum requirement but kept the structure of the funding program otherwise intact.⁵³

Current events enhanced the political prospects for passage. The day before the bill was due to come to the floor of the Senate, voters in the small coastal school district of North Beach, in Grays Harbor County, soundly defeated a $110 million bond measure for seismic upgrades to seriously deficient school facilities.⁵⁴ This result underscored the need to develop an alternative to a process dependent on bond referenda if schools were to make these upgrades. The following day, February 9, senators debating the bill emphasized the statewide nature of the problem and solution. Sen. Schoesler summarized it concisely: “Some of us have tragic fires, some of us have floods, some are in a position that, it’s not a matter of if there is an earthquake disaster but when, or a tsunami…It is a statewide issue that requires a statewide solution.”⁵⁵

Senators who spoke also rightly emphasized the need for policymaking on an issue of this nature to be led by the budget writers so that the structure of the program passed into statute would mesh with the mechanisms of capital construction funding. That debate ended with a unanimous yes vote in the Senate.⁵⁶

While the dynamics of the debate in the House were somewhat different, ultimately the bill passed both House committees and off the House floor with unanimous support. Not a single dissenting vote was seen in either chamber of a legislature usually sharply divided on major fiscal questions. Governor Inslee signed SB 5933 into law on March 23, 2022.⁵⁷ The 2022 final capital budget formally appropriated $100 million to the new seismic safety program.⁵⁸ The process of new funding of seismic school safety is currently in development for consideration by the 2023 Legislature under the framework of this new law.

Lessons for Addressing a Long-term Problem in Politically Polarized Times

First and foremost, taking on a large-scale, long-term issue like seismic safety requires getting a handle on the facts and the best science. That information is necessary but not sufficient to frame the issue in a way that resonates with key segments of the public. Developing publicly available information for members of the media who demonstrate a special interest in the issue can be as effective as pursuing a broader media strategy.

Once the time comes for legislative negotiations, it is important to approach counterparties in the right spirit. Rather than trying to persuade the other side to change long-held positions, finding creative new joint approaches is more effective at building the kind of bipartisan leadership that can compel new solutions and progress. Passing this legislation required continually leveraging public concern to cultivate a sense of shared responsibility while negotiating a solution that specifically and intentionally avoided having to make decisions that would have otherwise stalemated the process. Even in the most partisan times, big problems can have bipartisan solutions if lawmakers are willing to engage personally and without preconceived agendas on shared challenges that people face across geographical and ideological boundaries.

Finally, legislators should maximize the potential for sustained commitment by future legislatures, even if the commitment cannot bind them. Setting up a formalized, ongoing program in statute makes it harder for future legislatures to ignore the problem. The existence of the program puts the onus on legislators to respond to funding requests from a continuing effort. Even if, in tough economic times, they make the decision to decrease funding, it is less likely the funding will be zeroed out and more likely that it will be restored again in the future.

After years of inaction, 2022 was the year the Washington State Legislature finally began to make significant progress to address seismic safety in our public schools and appropriated $100 million to this effort. Though we cannot bind future legislatures to specified funding levels, establishing the program in statute sets the expectation that it will receive ongoing support in future budgets for years to come. This significant bipartisan achievement in an era of polarization shows how sustained, collaborative efforts can achieve progress even on issues that extend well beyond the likely terms for current lawmakers. And perhaps it shows a way forward for a “temperate and respectable body of citizens” to provide the long-range vision that our society and government need.

* David Frockt (D-Seattle) is completing his 12th year in the Washington State Senate. He has served in Democratic leadership and, since 2018, as vice chair of the Senate Ways & Means Committee with primary responsibility for Washington’s multi-billion-dollar capital construction budget.

**Kenneth Fockele is a senior communications specialist for Washington’s Senate Democratic Caucus.

The Conservative Case for the Judiciary Accountability Act

October 19, 2022 by dhimelman

*Aliza Shatzman

I. INTRODUCTION

The judiciary is an unaccountable workplace where some judges abuse their positions of power, mistreat their employees with impunity, and act as if they are answerable to no one. More judges engage in misconduct, including gender discrimination, harassment, and retaliation, than the legal community cares to admit. Fueling this injustice, the Third Branch is exempt from Title VII of the Civil Rights Act of 1964, the landmark antidiscrimination law that protects employees from gender discrimination, harassment, and retaliation in the workplace.¹ This exemption distinguishes the judiciary from Congress,² the Executive Branch,³ and most private businesses, whose employees are all protected by antidiscrimination laws.⁴

This year, the House and Senate Judiciary Committees are considering a bill, the Judiciary Accountability Act (JAA) (H.R. 4827/S. 2553), that would finally extend Title VII protections to the judiciary.⁵ Judicial accountability is, or should be, a bipartisan issue. Both Democratic⁶ and Republican⁷ judicial appointees mistreat their law clerks. Furthermore, both liberal and conservative clerks experience harassment and retaliation from the most powerful members of the legal profession—judges—with limited recourse available.⁸ Troublingly, as of August 2022, the JAA currently has only one Republican co-sponsor in the House⁹ and no Republican co-sponsors in the Senate.¹⁰

This article argues that Republican lawmakers should support the JAA because it promotes the conservative principles of curbing government abuses of power and enforcing the rule of law.¹¹ The JAA would rein in unaccountable judges who abuse their positions of power and act as if they are above the law. Additionally, the JAA would end the judiciary’s Title VII immunity, checking judicial behavior and holding judges to the same standards as members of the other two branches of government—including congressmen and chief executives—as well as employers in private businesses. Furthermore, the JAA would ensure that the next generation of attorneys—from the most conservative to the most liberal—are not driven out of the profession due to harassment and retaliation.¹²

In this article, I first discuss the scope of judicial misconduct, outline the Judiciary Accountability Act, and use my personal experience with harassment and retaliation by a former DC Superior Court judge to underscore why this legislation is so urgently necessary. Then, I explain why conservatives should support the JAA, explore conservative arguments against the JAA, and engage with some alternatives to the JAA, concluding that the JAA is the best path forward.

II. SCOPE OF THE PROBLEM: JUDICIAL MISCONDUCT IS PERVASIVE

Misconduct is pervasive and unaddressed in the federal courts.¹³ Troublingly, judiciary leadership, including the Judicial Conference of the United States and the Administrative Office of the U.S. Courts, have, until recently, repeatedly refused to conduct a widescale workplace culture assessment, making it difficult to measure the scope of the problem.¹⁴ Judiciary leadership insists that harassment and retaliation are not pervasive problems within the federal courts.¹⁵ However, judiciary employees who have experienced or witnessed mistreatment know differently.¹⁶

In 2018, U.S. Courts Administrative Officer James Duff proudly proclaimed that, in some years, including 2016, there were “zero” complaints filed by law clerks against judges.¹⁷ However, the judiciary only created a separate “judicial employees” category for its judicial complaint data in 2019, so it would have been nearly impossible to assess the number of complaints filed by law clerks.¹⁸ Furthermore, the dearth of complaints by law clerks against judges is likely due in part to the lack of channels for reporting misconduct.¹⁹

Between October 1, 2020 and September 30, 2021, there were only 11 formal complaints filed by judicial employees against judges under the Judicial Conduct and Disability Act,²⁰ which is the formal complaint process for the federal judiciary.²¹ However, according to a 2021 internal D.C. Circuit survey that was leaked to The Washington Post, fifty-seven judicial employees in that circuit experienced “problematic behavior” like gender discrimination, harassment, retaliation, and bullying, and an additional 134 either witnessed or heard about such misconduct.²² This mismatch with Duff’s assertion suggests both that the judiciary’s records do not capture the full scope of misconduct in the Third Branch and that the judiciary cannot be expected to adequately self-police on these issues.

Law clerks rarely file formal complaints against judges²³ because they fear retaliation by the judge or reputational harm in the legal community.²⁴ While anecdotal data indicate that harassment and retaliation are persistent problems,²⁵ judges are rarely disciplined, further disincentivizing filing complaints.²⁶ The most serious discipline judges receive are rare public reprimands.²⁷ Reprimands have no tangible consequences to judges’ lives—in contrast to the enormous life- and career-altering consequences the victims of their mistreatment face.²⁸ The threat of removal has also proven inconsequential in deterring problematic behavior by life-tenured judges, since removal requires congressional impeachment, which rarely happens.²⁹

Several aspects of a judicial chambers make it a uniquely dangerous workplace that is particularly conducive to harassment. First, there is an enormous power disparity between law clerks and judges. Law clerks are typically fresh-out-of-law-school lawyers who opt for a pay cut in order to spend one or two years learning from a judge.³⁰ Their powerful superiors either enjoy life tenure (for most federal judges) or ten- or fifteen-year terms (for Article I judges and most state court judges).³¹ Clerks, as a result, often depend on judges for references to secure their next jobs.³² In the best of circumstances, judges will be lifelong mentors, supporting the law clerks throughout their careers. But in the worst of circumstances, a negative clerkship experience can devolve into a long-term, far-reaching, retaliatory, and sour relationship between judge and clerk. Even a lukewarm reference can destroy a law clerk’s career.³³

Judges face no oversight in their day-to-day dealings with clerks.³⁴ In the typical judicial chambers, two law clerks, a judge, and perhaps a judicial assistant work behind closed doors for long hours under stressful circumstances. Furthermore, the internal courthouse workplace dispute resolution plan, known as Employee Dispute Resolution (EDR),³⁵ is notoriously flawed, lacking both confidentiality and impartiality.³⁶ These troubling features of judicial chambers are compounded by the fact that law clerks have fewer workplace protections than employees in other industries.³⁷

III. THE JUDICIARY ACCOUNTABILITY ACT

The Judiciary Accountability Act (JAA)³⁸ offers a solution to this outrageous lack of accountability in the federal judiciary. It would extend workplace protections to judiciary employees, and it would hold judges accountable for their poor behavior.

The JAA would finally extend Title VII protections to judiciary employees—including law clerks and federal public defenders³⁹ —enabling them to sue their harassers and seek damages⁴⁰ for harm done to their careers, reputations, and future earning potential.⁴¹

Additionally, the JAA would increase judicial accountability by revising the definition of “judicial misconduct” in Title 28 of the U.S. Code to include discrimination and retaliation.⁴² It would also clarify that misconduct investigations can continue even if the judge who faces misconduct allegations retires, resigns, or dies.⁴³ Additionally, the JAA would create a Commission on Judicial Integrity,⁴⁴ which would oversee several important initiatives, including standardizing Employee Dispute Resolution Plans,⁴⁵ creating a confidential reporting system,⁴⁶ crafting a workplace misconduct prevention policy,⁴⁷ and administering workplace culture assessments.⁴⁸

The JAA would finally require the judiciary to collect and report data on workplace culture,⁴⁹ the outcomes of judicial complaints,⁵⁰ and diversity in hiring.⁵¹ These are notoriously under-scrutinized areas, and the lack of data in these areas has enabled some judges to get away with misconduct for far too long.⁵²

IV. CASE STUDY: MY EXPERIENCE WITH HARASSMENT AND RETALIATION

Early in law school, I decided to become a homicide prosecutor—and during law school, I interned with four different U.S. Department of Justice offices, all during the Trump administration, which further solidified my opinions on crime.

I decided to clerk in the Superior Court of the District of Columbia (“D.C. Superior Court”) for a judge more progressive than myself. My law school had instructed me to “apply broadly”—meaning across the geographical and political spectra—and to accept the first clerkship I was offered.⁵³ The judge presided over felony cases, meaning that I would get a crash course in criminal prosecution right out of law school.

Unfortunately, my clerkship destroyed my career aspirations and set me on a different path.⁵⁴ Beginning just weeks into my clerkship, the judge began to harass me and discriminate against me because of my gender.⁵⁵ He would kick me out of court, telling me that I “made him uncomfortable” and he “just felt more comfortable with” my male co-clerk. He told me I was “aggressive” and “nasty” and that I had “personality issues.” The day I found out that I passed the Bar Exam—an enormous day in any young attorney’s life—he called me into his chambers and told me, “You’re bossy! And I know bossy because my wife is bossy!”

I was devastated. I cried in the courthouse bathroom at work and cried myself to sleep at night. I wished I could be reassigned to a different judge. However, my workplace did not have an Employee Dispute Resolution Plan in place that might have enabled me to be reassigned—it was implemented one year after my clerkship ended.⁵⁶

Eventually, the judge ended my clerkship early, telling me that I “made him uncomfortable” and “lacked respect for” him. I contacted D.C. Courts Human Resources (“HR”), but they told me there was nothing they could do because “HR doesn’t regulate judges” and “judges and law clerks have a unique relationship.” Then they asked me whether I knew that I was an “at-will employee.”

One year later, I was finally back on my feet. I secured my dream job as a prosecutor in the D.C. U.S. Attorney’s Office (“USAO”). I was two weeks into training when I received devastating news that altered the course of my life. The USAO told me the judge had made negative statements about me during my background investigation, that I “would not be able to obtain a security clearance,” and that, therefore, my job offer was being revoked.⁵⁷ A few days later, an interview offer for a different position with the same office was also revoked, based on the judge’s same negative reference. I was only two years out of law school, and the judge seemed to have limitless power to ruin my reputation and destroy my career.

I was eventually able to read the outrageous and misleading reference. By then, it was too late. The damage had been done. I was blackballed from what I thought was my dream job. I will likely never work as a federal prosecutor.

No one—not even a Senate-confirmed judge—should be able to mistreat their employees with impunity. However, the judiciary is a uniquely unaccountable workplace, where those tasked with interpreting the law are not subject to the rule of law—at least not where workplace harassment is concerned. As if mistreating one’s law clerks during their clerkships was not terrible enough, some judges are emboldened to exert far-reaching authority over their former clerks’ careers. There are no guardrails to prevent the type of mistreatment I experienced during my clerkship and in the years following it. Law clerks have neither legal protections nor recourse when the most powerful members of the profession abuse their positions of power.

I became aware of the proposed JAA while I was engaged in the formal judicial complaint process in the summer and fall of 2021. Since then, I have spoken with many House and Senate offices, both Democratic and Republican, including those involved with drafting the JAA, to urge their bosses to support this critical legislation. I highlighted my personal story to personalize abstract issues. My experience with harassment and retaliation by a former D.C. Superior Court judge underscores why the JAA is so urgently needed. I wish the JAA had protected me when I was a law clerk.

V. CONSERVATIVES SHOULD SUPPORT THE JUDICIARY ACCOUNTABILITY ACT

The JAA should receive bipartisan support. Both Democratic and Republican appointees harass their clerks,⁵⁸ and both liberal and conservative clerks experience mistreatment.⁵⁹ House and Senate Republicans should support the JAA, considering how much it aligns with conservative principles like enforcing the rule of law and curbing government abuses of power.

The JAA would finally extend Title VII protections to more than 31,000 federal judiciary employees.⁶⁰ It is baffling that an entire branch of the federal government is so lawless. The judiciary is distinct from Congress and the Executive Branch, where staffers are protected by, and lawmakers are subject to, Title VII.⁶¹ In fact, Congress extended additional workplace protections to more employees, including interns, in 2018.⁶² Unpaid congressional interns are protected by Title VII, yet young attorneys working for life-tenured federal judges are not. Conservatives should demand that the judiciary be subject to the same standards as other government branches and most private businesses, where employees are protected by various antidiscrimination laws.⁶³ Continuing to exempt the judiciary from Title VII sends a powerful message to misbehaving judges that they are above the laws they interpret. Subjecting judges who harass their clerks to Title VII litigation would curb government abuses of power by judges who mistreat their clerks with impunity.

If a law school graduate decides to work at a law firm, on the Hill, or at the White House, they are protected under civil rights laws. If they are mistreated by their employers, they can seek legal redress. However, if they decide that, for their first job, they want to spend a year or two learning from a judge, these young lawyers may experience harassment and retaliation with no legal recourse. Judiciary employees are not asking for special protections.⁶⁴ Title VII, which applies to their counterparts in similar industries, should apply to them as well.

Arguably, the judiciary needs Title VII even more than the other two branches of government, because these powerful employers—judges—enjoy life tenure.⁶⁵ Compared to a congressional office—with about half a dozen staffers in a House office and about a dozen staffers in a Senate office—a judicial chambers has a fraction of the staff and an employer with more unchecked power. A judicial chambers is more geographically isolated and more physically imposing than a congressional office. There is nowhere for a mistreated clerk to go to escape their harasser—no alternative supervisor to work for or to contact for assistance. Furthermore, members of Congress are accountable to the public—the voters—through elections every two or six years. Most federal judges have life tenure, making them effectively accountable to no one.⁶⁶

Judges who mistreat their clerks are committing egregious abuses of power. Judges are empowered with the authority to make decisions every day that affect fundamental aspects of litigants’ lives—including decisions about their liberty. And yet, those to whom we entrust the most power are immune from suit. Misbehaving judges evade scrutiny over their mistreatment of clerks; they also avoid accountability for committing misconduct.⁶⁷

VI. CONSERVATIVE OPPOSITION TO THE JAA

Some conservative organizations, members of Congress, and judges⁶⁸ have voiced opposition to the JAA.⁶⁹ They argue that the JAA introduces intrusive regulation, particularly by imposing a centralized Commission on Judicial Integrity;⁷⁰ that the judiciary is a unique branch of government that can and should self-police;⁷¹ and that the JAA threatens “judicial independence.”⁷² Some Republican congressional offices have also questioned whether the JAA would chill hiring and whether it would be effectively utilized.⁷³.

A. It Is Time to Centralize and Standardize the Judiciary’s Approach To Workplace Misconduct.

Some have criticized the breadth of the Commission on Judicial Integrity’s oversight mandate, arguing instead for decentralized governance within the judiciary and claiming that each courthouse has unique needs.⁷⁴ However, this Commission would neither regulate judges’ day-to-day dealings with their clerks nor their rulings. Its purpose is to oversee and administer the JAA’s programs—including the workplace misconduct prevention policy, the standardized EDR Plan, the confidential reporting system, the data collection initiatives, and the workplace culture assessments.⁷⁵

It is time to centralize and standardize judiciary workplace policies so that every law clerk, no matter what state and courthouse they work in, knows there are safe places for them to go to report misconduct and seek assistance. Current judiciary policies are either nonexistent or ineffective. Judges investigate their colleagues, both internally through EDR and through formal complaints under the Judicial Conduct and Disability Act.⁷⁶ These policies create both the appearance of and an actual conflict of interest. As a result, judges rarely face discipline.

While some continue to quibble about specific provisions of the JAA, as it stands, law clerks lack basic workplace protections. Nothing about the judiciary suggests that it should be uniquely exempt from civil rights laws. Judges who enforce antidiscrimination laws should themselves be subject to them. Judiciary employees who go to work in courthouses across the country deserve the same access to the justice system as the litigants who appear before them.

The judiciary is a sprawling workplace that spans hundreds of courthouses across all fifty states.⁷⁷ Perhaps this could cut in favor of internal self-policing at individual courthouses, especially if judges could point to unique characteristics of their courthouses requiring special policies. However, judges in courthouses across the country have proven themselves unable and unwilling to self-police misconduct in their ranks.⁷⁸ As misconduct allegations and investigations into other insular organizations like police unions⁷⁹ and the military⁸⁰ have shown, attempts to self-regulate often fail.

Some judges have privately voiced concerns about whether judicial complaints and investigations under the JAA could be politically weaponized by an overbearing, highly partisan Congress.⁸¹ For example, a Democratic-majority Congress could threaten to investigate conservative or Republican-appointed judges for misconduct if they do not rule a certain way. However, under the Judicial Conduct and Disability Act, individual members of Congress already can theoretically pressure chief judges to initiate investigations into judges, even absent a complaint by a law clerk.⁸² Congress has not politicized this process in the more than four decades since the policy has been in place.⁸³

Opposition to the JAA under the guise of “judicial independence” is particularly disingenuous.⁸⁴ The JAA, which would finally implement basic workplace policies and create some judicial accountability, has nothing to do with ensuring that judicial rulings are free from outside political influence.⁸⁵ What most threatens judicial independence is when notorious harassers, including misogynistic judges, are never disciplined. What are female litigants to think when they appear before these notoriously misbehaving judges—particularly if the judges are presiding over Title VII cases? Judicial independence in decision-making is distinct from workplace conduct.

B. There Are No Downstream Political Implications For Extending Title VII To the Judiciary.

Conservative congressional offices are willing to engage on the subjects of judicial accountability and increased workplace protections for judiciary employees.⁸⁶ However, some offices have privately raised concerns about specific aspects of the bill.⁸⁷ In this section, I engage with two points of concern: first, that the JAA will either chill hiring by judges seeking to avoid lawsuits or complaints down the road; and second, that mistreated law clerks will not actually sue judges under Title VII.

The JAA will not chill hiring.⁸⁸ In 1995, Congress extended Title VII to both itself and the Executive Branch.⁸⁹ At the time, the Judicial Conference vociferously opposed extending Title VII protections to judiciary employees, in part because “[t]he judiciary currently provides its employees with protections similar to those enumerated in” the statutes.⁹⁰ Since 1995, there has been no evidence to suggest that either branch of government’s hiring patterns were affected by extending Title VII protections to their employees.

I have spoken with many federal and state court judges from a variety of jurisdictions about the JAA.⁹¹ Anecdotally, many federal judges support the JAA or some other increased workplace protections for employees and accountability for their colleagues.⁹² Furthermore, state court judges are already subject to Title VII or similar state antidiscrimination laws, such as 42 U.S.C. § 1983; these judges still handle their judicial tasks effectively, hire law clerks without issue, and conduct business efficiently.⁹³ At least half a dozen federal judges who previously served on their state benches have stated that they do not believe that they should suddenly become exempt from antidiscrimination laws because of a change in jurisdiction; nor do they believe that something about themselves as employers suddenly changed when they received life tenure.⁹⁴

Congressional offices have also asked whether judiciary employees, including law clerks and federal public defenders, will actually sue their powerful superiors under the JAA. State court employees can sue judges under Title VII and state antidiscrimination laws; yet, they rarely feel empowered to do so.⁹⁵ Multiple congressional staffers even argued that suing a judge would make the judiciary employee unemployable in the legal community.⁹⁶

These concerns are unwarranted. Evidence suggests the JAA will be utilized and will have a material effect on judicial workplaces. In fact, some judiciary employees are trying to sue right now.⁹⁷ Former North Carolina Assistant Federal Public Defender Caryn Strickland is currently engaged in litigation against judiciary officials in the Fourth Circuit for gender discrimination, harassment, and retaliation.⁹⁸ Ms. Strickland can only rely on Fifth Amendment equal protection and due process claims because federal defenders’ offices are also currently exempt from Title VII.⁹⁹

These same arguments could have been raised against extending Title VII to the Legislative and Executive Branches in 1995 but would have rung similarly hollow. Regardless of survivors’ appetite for litigation, they should not be denied the right to sue their harassers. Furthermore, potential liability for employers is a strong disincentive for harassment. Additionally, the argument about unemployability in the legal community cuts both ways. It will be more difficult for the former clerk to find a legal job after suing a judge, just as it will be more difficult for them to find a legal job after filing a complaint against a judge. However, judiciary employees who are driven from the profession and face financial hardship must be able to sue and seek damages.

Most importantly, the JAA does much more than just extend Title VII protections to judiciary employees—it establishes courthouse workplace protections and creates judicial accountability.¹⁰⁰ By requiring the judiciary to collect and publish data, including the results of a desperately needed workplace culture assessment, the JAA would finally quantify the scope of the problem.¹⁰¹ No matter how many judiciary employees take advantage of the Title VII protections, many more will utilize the workplace misconduct prevention policy, the confidential reporting system, and the standardized EDR Plan.¹⁰² Every employee will benefit from a publicly reported climate survey of the judiciary as well as data on law clerk and public defender hiring and the outcomes of judicial complaints.

The JAA is not perfect. For example, it will not remove EDR and Judicial Conduct and Disability Act investigations from the judiciary’s chain of command. It should. Judges should not investigate their colleagues. Additionally, the JAA will not revise the provision in Title 28 of the U.S. Code that allows a judge to continue collecting his pension if he retires rather than resigns amid a misconduct investigation—collecting taxpayer dollars after committing misconduct.¹⁰³ It should. However, judiciary employees cannot wait another year for urgently needed reforms.

VII. CONSERVATIVE ALTERNATIVES TO THE JAA

Some judges and conservative congressional offices have suggested alternatives to the JAA.¹⁰⁴ The first is to utilize an internal U.S. Courts Administrative Office (“AO”) process, rather than Title VII, to adjudicate workplace disputes.¹⁰⁵ The second is to sever the JAA—passing the Title VII protections now, while addressing the judicial accountability, data collection, and judicial oversight provisions later, perhaps in a separate bill.¹⁰⁶ While extending Title VII to the judiciary is better than doing nothing, both of these proposals are undesirable.

A. Current Internal Processes for Adjudicating Workplace Disputes in the Judiciary are Ineffective.

The judiciary has proven itself unable or unwilling to self-police.¹⁰⁷ Congress should not give the federal judiciary any more opportunities to offer toothless “reforms.” Following public misconduct allegations against former Ninth Circuit Judge Alex Kozinski in 2017,¹⁰⁸ the following year, the Judicial Conference of the United States, which is the national policymaking body for the federal courts, created a Workplace Conduct Working Group to make internal policy recommendations.¹⁰⁹ The Working Group released an interim report in 2019, offering a few hollow proposals and continuing to insist that harassment and misconduct are not pervasive within the federal courts.¹¹⁰ Judiciary leadership continues to tout its EDR Plan,¹¹¹ claiming that Title VII protections are unnecessary and duplicative.¹¹² However, EDR Plans among the federal courts are notoriously ineffective.¹¹³ They are not standardized among all federal courthouses; the proceedings are not confidential; and the judges overseeing EDR complaints are not impartial arbiters.¹¹⁴ Furthermore, in many cases, judiciary employees attempting to utilize the EDR Plan lack basic due process rights.¹¹⁵

On March 16, 2022, just hours before the House Judiciary Subcommittee hearing to discuss the JAA,¹¹⁶ and after more than four years of work, the Working Group released another Report.¹¹⁷ The Report offered a few meaningless reforms to EDR and again claimed that the judiciary is an exemplary workplace that can self-police.¹¹⁸ Two judiciary representatives from the Working Group testified at the hearing the next day, making the same hollow claims.¹¹⁹

Arguments about judicial independence and judicial exceptionalism are troublesome, since judges have been notoriously unwilling to discipline their colleagues, even in the face of appalling misconduct.¹²⁰ The judiciary has also strenuously opposed oversight.

Under these circumstances, and based on the judiciary’s failures in the EDR context, the AO should not be permitted to craft its own internal policy to mirror Title VII. Title VII may not be perfect,¹²¹ but it is better than anything the judiciary has come up with to self-regulate. The judiciary has been trying to self-regulate for 250 years and has been unable to prevent and discipline misconduct in its ranks.¹²²

B. Every Component of the JAA Is Crucial.

Partisanship in recent years has rendered Congress unable to pass much legislation,¹²³ making it imprudent to rely on future congressional action. With the JAA finally gaining momentum across the political spectrum, now is not the time for half measures. Therefore, Congress should not sever the JAA to focus on the Title VII protections now, with the intent of passing a second bill later. Lawmakers should act swiftly and decisively to protect judiciary employees.

Critically, the JAA as written does much more than simply extend Title VII protections. In fact, the other parts of the bill—the workplace misconduct prevention policy, confidential reporting system, standardized EDR Plans, workplace culture assessment, and data collection and dissemination programs—will assist the entire judiciary workforce and promote the judiciary’s mission. Similar legislation extending workplace protections to Congress and the Executive Branches, such as the Congressional Accountability Act (“CAA”) and the Executive and Presidential Office Accountability Act (“EPOAA”), did much more than just extend Title VII protections to those branches.¹²⁴ The CAA and the EPOAA, which have transformed federal workplaces in their respective branches, achieved their success by taking a holistic approach to workplace protections, rather than just extending Title VII to their employees.

C. Change Is Headed to the Judiciary

While these two alternatives to the JAA would not make the meaningful reforms for which I am advocating, my conversations with conservative congressional offices and judges make me hopeful that the JAA can receive bipartisan support. A wide swath of Congress, as well as a wide swath of the judiciary’s rank and file, support increased workplace protections for judiciary employees and increased accountability for judicial misconduct.¹²⁵ It is primarily the judiciary’s leadership—a powerful lobby—that aggressively opposes congressional oversight.¹²⁶ However, congressional Republicans should listen to their constituents, who are affiliated with courthouses across the country and who would benefit immensely and immediately from the JAA.

VIII. CONCLUSION

Many members of the House and Senate Judiciary Committees were law clerks themselves. Some of their staffers are former clerks. What would these members of Congress and staffers have done if they were harassed at work? Would they have been driven from the profession? That would have been an enormous waste of their training and talents.

There are federal courthouses in all fifty states, meaning the JAA touches every state.¹²⁷ Every Senator and nearly every House member represents constituents whose workplaces would be made safer by the JAA.¹²⁸ While politicians of all parties regularly defend and support judges for partisan reasons, they neglect law clerks—the next generation of progressive and conservative thinkers and decision-makers—who are tossed aside and driven from the profession by misbehaving judges bent on destroying their careers out of malice or vindictiveness.¹²⁹

The judicial workplace should set the standard for workplace civility, safety, and accountability. Judiciary employees—from the most left-leaning progressive to the most right-leaning conservative—cannot wait another year for the JAA’s urgently needed reforms. Conservatives should support the JAA because it would align the judiciary with the other branches of government and with most private employers. Every conservative should be outraged by the lawlessness and unaccountability of our judiciary.

* Aliza Shatzman is an attorney and advocate in Washington, DC who writes and speaks about judicial accountability. Ms. Shatzman is the President and Co-Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. Ms. Shatzman’s writing on this subject has previously appeared in the UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Yale Law & Policy Review, Above the Law, Law360, Ms. Magazine, Slate, and Balls & Strikes. Ms. Shatzman earned her BA from Williams College in Williamstown, Massachusetts, and her JD from Washington University School of Law in St. Louis, Missouri, where she was an Associate Editor of the Journal of Law & Policy.

Reparando los Daños Causados por las Intervenciones Militares Ilícitas del Pasado: El Caso de la República Dominicana

October 12, 2022 by dhimelman

Congresista Adriano Espaillat* y Francesco Arreaga**

I. INTRODUCCIÓN

Como el primer domínico-estadounidense en servir en el Congreso de los Estados Unidos y miembro del Subcomité de Estado, Operaciones Extranjeras y Programas Relacionados del Comité de Apropiaciones de la Cámara, me preocupo profundamente por las relaciones de los Estados Unidos en todo el Caribe y los compromisos para garantizar que estemos cumpliendo nuestros ideales de igualdad, libertad, oportunidad y democracia en el escenario mundial. Mantener las relaciones diplomáticas entre los Estados Unidos y la República Dominicana es especialmente importante para mí, ya que nací en Santiago de los Caballeros, República Dominicana y vine a los Estados Unidos cuando era niño. Fomentar esta importante relación requiere el reconocimiento y la reparación de las pasadas intervenciones y ocupaciones militares de Estados Unidos en la República Dominicana. Mientras crecía, mi familia me enseñó acerca de las intervenciones militares de los Estados Unidos, y recuerdo haber visto a infantes de marina de los EE.UU. patrullando en la República Dominicana en 1965 cuando regresé brevemente a Santo Domingo, sin comprender completamente su significado o el impacto que su presencia tuvo en mi comunidad.

Este ensayo detalla la historia de las intervenciones de los Estados Unidos en la República Dominicana, incluido el deseo del presidente Ulysses S. Grant de anexar la República Dominicana a los EE.UU., la ocupación de 1916-1924, el apoyo de los EE.UU. al régimen opresor de Trujillo y la ocupación de 1965-1966. Luego describe cómo las dos ocupaciones militares de los Estados Unidos violaron la soberanía de la República Dominicana. Concluye explicando cómo el proyecto de ley que introduje en el Congreso 117, la H.R. 2725 –La Ley de la Comisión de las Ocupaciones Norteamericanas (Commission on United States Occupations Act)– es un paso importante para reparar el daño causado por las intervenciones militares de los Estados Unidos en la República Dominicana, que reforzará la legitimidad de la defensa de los derechos humanos y el derecho internacional de los Estados Unidos en el escenario mundial.

II. UNA HISTORIA DE INTERVENCIÓN EN LA REPÚBLICA DOMINICANA

A. Presidente Grant Intenta Anexar República Dominicana

Después de independizarse de Haití en 1844 y de España en 1865, la República Dominicana enfrentó un período de inestabilidad política, aumento de la deuda nacional y una continua amenaza de invasión. Al mismo tiempo, Estados Unidos se adhirió a la Doctrina Monroe, una política que establecía que los países del Hemisferio Occidental no debían ser considerados objetos de una colonización futura por ninguna potencia europea.¹

Temiendo que una potencia europea tomara el control de la República Dominicana, el 29 de noviembre de 1869, el presidente Ulysses S. Grant firmó un tratado con la República Dominicana para anexar la nación a cambio de $1.5 millones y el pago de su deuda.² El 31 de mayo de 1870, el presidente Grant envió un mensaje al Senado de los Estados Unidos sobre el tratado de anexión de la República Dominicana, expresando que “la adquisición de Santo Domingo es en observación a la doctrina Monroe; es una medida de protección nacional; está afirmando nuestro justo reclamo de una influencia controladora sobre el gran tráfico comercial que pronto fluirá de este a oeste.”³ El tratado requería dos tercios de los votos en el Senado para ser ratificado. El 30 de junio de 1870, el Senado, por una votación de 28-28, rechazó el tratado de anexión.⁴

El 12 de enero de 1871, el Congreso promulgó una resolución conjunta creando una Comisión de Investigación de los EE.UU. en Santo Domingo.⁵ Frederick Douglass fue miembro de esta Comisión y apoyó los esfuerzos para anexar la República Dominicana.⁶ La Comisión de Investigación emitió su informe al Congreso detallando cómo el presidente de la República Dominicana y su gabinete “manifestaron un espíritu liberal y acomodaticio” al tratado de anexión.⁷ También señaló que la gente en la República Dominicana preferiría la independencia a la anexión, pero evaluó que “la independencia es imposible” – porque la República Dominicana “nunca había mantenido una independencia real” antes.⁸ La Comisión no hizo una recomendación oficial sobre la anexión, ya que estaba más allá de su mandato congresual.⁹ En última instancia, el Congreso de los Estados Unidos no siguió adelante con el deseo del presidente Grant de anexar la República Dominicana.

B. La Ocupación Estadounidense de 1916 a 1924

Para 1904, el presidente Theodore Roosevelt había establecido una nueva doctrina de política exterior para mantener a las potencias extranjeras fuera del Hemisferio Occidental y garantizar el pago de las deudas a los acreedores internacionales. El Corolario de Roosevelt a la Doctrina Monroe establecía que Estados Unidos actuaría como “una potencia policial internacional” en el Hemisferio Occidental.¹⁰ En la práctica, esta doctrina sirvió como justificación para la intervención estadounidense en varios países del Hemisferio Occidental.¹¹

De acuerdo con el Corolario de Roosevelt, la Convención de 1907 entre los Estados Unidos y la República Dominicana autorizó al presidente de los Estados Unidos a nombrar un receptor general para cobrar los derechos de aduana acumulados por la República Dominicana hasta que el país pagara lo que debía a los acreedores estadounidenses.¹² Tras el asesinato del presidente dominicano Ramón Cáceres en 1911, la República Dominicana entró en un período de continua inestabilidad política que le impidió cumplir con sus obligaciones fiscales. Estados Unidos intervino enviando 750 infantes de marina a la República Dominicana, cortando los fondos de la colecturía de aduanas y colocando a monseñor Adolfo Nouel como presidente interino.¹³

El 5 de mayo de 1916 fueron desplegados aproximadamente 280 soldados estadounidenses para apoyar al presidente Jiménez. Sin embargo, solo dos días después, el presidente Jiménez renunció.¹⁴ Se produjo una guerra civil y, finalmente, Estados Unidos envió 3,000 soldados para ocupar la República Dominicana.¹⁵ El 4 de julio de 1916, el general dominicano Carlos Daniel y el capitán Máximo Cabral resistieron al ejército estadounidense que avanzaba hacia Santiago durante la Batalla de La Barranquita.¹⁶ Cabral y la mayoría de sus hombres murieron en combate el 4 de julio de 1916.¹⁷ Los relatos históricos indican que los infantes de marina estadounidenses “intimidaron, insultaron, maltrataron, oprimieron, hirieron e incluso mataron a cientos de dominicanos, combatientes y no combatientes por igual.”¹⁸ Los registros del Departamento de Estado de EE.UU. admiten que “Las audiencias del Senado de EE.UU. resultaron vergonzosas cuando los testigos dominicanos argumentaron que la ocupación violó el derecho internacional y contravino los Catorce Puntos de Wilson, y examinaron el maltrato de los insurgentes dominicanos encarcelados.”¹⁹ La ocupación estadounidense de la República Dominicana duró ocho años, causando un gran resentimiento entre los ciudadanos de la República Dominicana. Al menos 1,000 personas murieron durante este conflicto.²⁰

C. El Apoyo de Estados Unidos al Régimen Represivo de Trujillo

Durante la ocupación estadounidense de la República Dominicana, Estados Unidos formó una policía compuesta por ciudadanos dominicanos entrenados por los marines estadounidenses para vigilar el país. Entre estos nacionales estaba Rafael Leonidas Trujillo Molina, un “favorito del personal de la Marina.”²¹ Cuando Estados Unidos se retiró de la República Dominicana en 1924, Trujillo comandaba el Ejército Nacional. En 1930, el general Trujillo se postuló para la presidencia y ganó, asegurando “su elección mediante la supresión a la fuerza de toda oposición.”²²

Trujillo retuvo un control decisivo sobre la República Dominicana durante más de tres décadas, monopolizó varias industrias para asegurarse de que las ganancias económicas beneficiaran desproporcionadamente a su familia y reunió una fuerza policial secreta para censurar la prensa y matar a los disidentes.²³ Trujillo y los miembros de su familia tomaron el control de las industrias de la sal, el tabaco y la cerveza, al tiempo que adquirieron aproximadamente un tercio de las tierras cultivables de la nación.²⁴ En 1938, un periodista e historiador estadounidense escribió que “Trujillo, entre otras cosas, es producto del gansterismo, el bandolerismo, el militarismo y nuestra propia ocupación de la Marina.”²⁵ A lo largo de la administración del presidente Roosevelt, Estados Unidos apoyó a Trujillo a pesar de su régimen represivo porque sirvió a los intereses financieros de Estados Unidos y protegió las propiedades extranjeras en la República Dominicana.²⁶

En la década de 1950, en medio de la Guerra Fría, la administración del presidente Dwight D. Eisenhower se centró en prevenir la propagación del comunismo. En 1958, el presidente Eisenhower puso fin a los envíos de armas a Cuba y suspendió la ayuda militar a Trujillo. En abril de 1960, el presidente Eisenhower aprobó un memorando del Departamento de Estado sobre las políticas a seguir “en caso de huida, asesinato, muerte o derrocamiento de Trujillo.”²⁷ El memorándum detallaba cómo Estados Unidos estaba dispuesto a “enviar buques de guerra a aguas dominicanas o desembarcar tropas en suelo dominicano” para evitar el surgimiento de un régimen simpatizante de Fidel Castro de Cuba.²⁸ Posteriormente, varios representantes de Estados Unidos viajaron a República Dominicana para convencer a Trujillo de que renunciara. Trujillo resistió y dijo “pueden entrar aquí con la Marina, y pueden entrar aquí con el Ejército, y pueden entrar aquí con la Armada o incluso con la bomba atómica, pero nunca saldré de aquí a menos que sea en camilla.”²⁹

En junio de 1960, el subsecretario de Estado para Asuntos Latinoamericanos dio su aprobación extraoficial a la Agencia Central de Inteligencia (CIA) para brindar asistencia clandestina a los disidentes en la República Dominicana necesaria para desarrollar una fuerza para derrocar a Trujillo.³⁰ El 30 de mayo de 1961, Trujillo fue asesinado por siete ciudadanos dominicanos.³¹

D. La Segunda Ocupación de la República Dominicana (1965-1966)

Tras el asesinato de Rafael Trujillo, el fundador del Partido Revolucionario Dominicano, Juan Bosch, fue elegido presidente. Bosch fue derrocado por un golpe militar solo siete meses después de su mandato, y la República Dominicana se sumió en la agitación política. El 28 de abril de 1965, el presidente Lyndon B. Johnson ordenó el ingreso de tropas a la República Dominicana a través de la “Operación Power Pack” para proteger las vidas y propiedades estadounidenses en la República Dominicana.³² El presidente Johnson, sin embargo, también declaró que había tomado esta acción militar para evitar el establecimiento de una “dictadura comunista.”³³ De manera similar, el embajador de Estados Unidos en República Dominicana, William Tapley Bennett, Jr., describió cómo era necesaria la intervención para “prevenir otra Cuba.”³⁴

El 28 de abril de 1965, más de 22,000 soldados estadounidenses, apoyados por fuerzas proporcionadas por varios estados miembros de la Organización de los Estados Americanos, iniciaron una intervención militar en República Dominicana.³⁵ Finalmente, 42,000 miembros de las fuerzas armadas estadounidenses se desplegaron en la República Dominicana y permanecieron allí hasta septiembre de 1966.³⁶ Más de 3,000 dominicanos y 31 militares estadounidenses perdieron la vida.³⁷

III. LAS VIOLACIONES DEL DERECHO INTERNACIONAL REQUIEREN REPARACIONES

A. El Caso de la Fábrica de Chorzów sobre las Reparaciones

El principio de proporcionar reparaciones para compensar una violación del derecho internacional existe desde antes de la creación de la Carta de las Naciones Unidas (ONU) en 1945. En 1927, la Corte Permanente de Justicia Internacional sostuvo en el caso de la Fábrica de Chorzów que “es un principio de derecho internacional que toda violación de un compromiso internacional implica la obligación de reparar de una forma adecuada.”³⁸ Además, el tribunal explicó que las reparaciones “deben, en la medida de lo posible, anular todas las consecuencias del acto ilícito y restablecer la situación que, con toda probabilidad, habría existido de no haberse cometido dicho acto.”³⁹ En otras palabras, cuando un país se involucra en una acción que viola el derecho internacional, no solo tiene la obligación moral de corregir ese error, sino también la obligación legal de hacerlo según el derecho internacional.

B. La Carta de la ONU

Después de la Segunda Guerra Mundial, Estados Unidos se coordinó con otras naciones para crear las Naciones Unidas. El Senado de los Estados Unidos ratificó la Carta de la ONU el 28 de julio de 1945 con una votación de 89-2.[/mfn] 93 CONG. REC. 8, 8190 (1947) (votación nominal) https://www.senate.gov/about/resources/pdf/un-charter-roll-call-vote-1945.pdf [https://perma.cc/4KDK-XMGE]. [/mfn] La Carta establece el marco básico para los estándares jus ad bellum que describen cuándo un estado puede involucrarse legalmente en un conflicto armado y reafirma el compromiso de la ONU de respetar la soberanía de cada nación miembro de la ONU.

El Artículo 2, párrafos 1, 2 y 4 de la Carta de las Naciones Unidas declara que los miembros de la ONU actuarán de acuerdo con los siguientes principios:

La Organización está basada en el principio de la igualdad soberana de todos sus Miembros.;
Los Miembros arreglarán sus controversias internacionales por medios pacíficos; y
Todos los Miembros se abstendrán de recurrir a la amenaza o al uso de la fuerza contra la integridad territorial o la independencia política de cualquier Estado.⁴⁰

El Artículo 33 establece que “[las] partes en una controversia cuya continuación sea susceptible de poner en peligro el mantenimiento de la paz y la seguridad internacionales tratarán de buscarle solución, ante todo, mediante la negociación, la investigación, la mediación, la conciliación, el arbitraje, el arreglo judicial, el recurso a organismos o acuerdos regionales u otros medios pacíficos de su elección.”⁴¹

La Resolución 3314, adoptada por la Asamblea General de las Naciones Unidas el 14 de diciembre de 1974, define agresión como “el uso de la fuerza armada por un Estado contra la soberanía, la integridad territorial o la independencia política de otro Estado, o de cualquier otra manera incompatible con la Carta de las Naciones Unidas”, tal como se establece en esta Definición.”⁴² Además, “la invasión o ataque por las fuerzas armadas de un Estado del territorio de otro Estado, o toda ocupación militar, aunque sea temporal, resultante de tal invasión o ataque, o cualquier anexión por el uso de la fuerza del territorio de otro Estado o parte del mismo” califica como un acto de agresión.⁴³

Finalmente, el artículo 92 de la Carta de las Naciones Unidas establece la Corte Internacional de Justicia como el principal órgano judicial de las Naciones Unidas, y el artículo 94 establece que “Cada Miembro de las Naciones Unidas se compromete a cumplir la decisión de la Corte Internacional de Justicia en todo litigio en que sea parte.”⁴⁴

C. Las Invasiones Militares de Estados Unidos a la República Dominicana Constituyeron Violaciones del Derecho Internacional

Basado en los principios esbozados en la sección anterior, es claro que las intervenciones militares de los Estados Unidos en la República Dominicana violaron principios fundamentales del derecho internacional. Estas intervenciones militares fueron actos de agresión, tal como se describe en la Resolución 3314 de la ONU y desconocieron la soberanía territorial y política de la República Dominicana. La Doctrina Monroe y el Corolario de Roosevelt fueron utilizados para justificar actos de agresión contra países del Hemisferio Occidental como la República Dominicana, pero tales justificaciones no absuelven a nuestra nación de la mancha moral que dejan las violaciones del derecho internacional, así como el devastador impacto que estas acciones tienen en la sociedad civil.

D. Nicaragua v. Estados Unidos

Es probable que cualquier país que busque reparaciones de los Estados Unidos por violaciones del derecho internacional no pueda obtener con éxito una reparación de un tribunal internacional. El caso de Nicaragua v. Estados Unidos ejemplifica los límites del derecho internacional al mostrar las barreras para hacer cumplir las sentencias de los tribunales internacionales. Específicamente, este caso sirve como un precedente útil para mostrar por qué la República Dominicana probablemente no podría obtener una reparación a través de un tribunal internacional por las intervenciones militares de los Estados Unidos en el siglo XX.

El 9 de abril de 1984, Nicaragua presentó ante la Corte Internacional de Justicia (CIJ) una solicitud para iniciar un proceso contra los Estados Unidos “acerca de una disputa relacionada con la responsabilidad de actividades militares y paramilitares en y contra Nicaragua.”⁴⁵ Tras la determinación de la CIJ de que tenía jurisdicción para conocer este caso, el Departamento de Estado de los Estados Unidos anunció que no reconocía la jurisdicción de la CIJ.⁴⁶ El 22 de febrero de 1985, el presidente Ronald Reagan afirmó durante la primera conferencia de prensa de su segundo mandato que su objetivo era “remover” la “estructura actual” del gobierno de Nicaragua.⁴⁷

El 27 de junio de 1986, la Corte emitió su sentencia, sosteniendo que Estados Unidos estaba “incumpliendo [su] obligación bajo el derecho internacional consuetudinario de no intervenir en los asuntos de otro Estado” al “entrenar, armar, equipar, financiar y suministrar a las fuerzas de la Contra o de otra manera alentar, apoyar y ayudar a las actividades militares y paramilitares en y contra Nicaragua.”⁴⁸ Además, la CIJ concluyó que “Estados Unidos de América tiene la obligación de reparar a la República de Nicaragua por todos los daños causados a Nicaragua por el incumplimiento de sus obligaciones en virtud del derecho internacional consuetudinario”.

La Corte señaló que el Congreso de los Estados Unidos “expresó la opinión de que el Gobierno de Nicaragua había dado ‘pasos significativos hacia el establecimiento de una dictadura comunista totalitaria.’”⁴⁹ Sin embargo, la Corte se negó a “contemplar la creación de una nueva regla que abriera un derecho de intervención de un Estado contra otro sobre la base de que este último ha optado por alguna ideología o sistema político particular.”⁵⁰Tal conclusión socavaría el “principio de la soberanía del Estado, en el que descansa todo el derecho internacional, y la libertad de elección del sistema político, social, económico y cultural de un Estado.”⁵¹

El 31 de julio de 1986, Estados Unidos vetó la Resolución de la ONU S/18250, que solicitaba un “llamado urgente y solemne al pleno cumplimiento de la sentencia de la Corte Internacional de Justicia” en Nicaragua v. Estados Unidos.⁵² En octubre de 1986, Estados Unidos vetó una iniciativa similar, la Resolución S/18428.⁵³ El 3 de noviembre de 1986, la Asamblea General de la ONU adoptó la Resolución 41/31, exigiendo el cumplimiento inmediato de la sentencia de la CIJ y solicitando que el Secretario General mantenga informada a la Asamblea General sobre la implementación de la resolución.⁵⁴ Luego de una presión sostenida, Nicaragua informó a la CIJ en septiembre de 1991 que ya no deseaba continuar con los procedimientos contra Estados Unidos y el caso fue sobreseído.⁵⁵

Además de los desafíos de obtener reparaciones de los tribunales internacionales, la Corte Suprema de los Estados Unidos también ha establecido que las decisiones de la CIJ no son vinculantes para el derecho interno.⁵⁶

E. El Congreso debe Proporcionar Reparaciones para las Violaciones del Derecho Internacional

La Cláusula de Supremacía de la Constitución de los Estados Unidos hace que los tratados sean la ley suprema del país.⁵⁷ La Corte Suprema de los Estados Unidos sostuvo en Foster v. Neilson que en los Estados Unidos, “nuestra Constitución declara que un tratado es la ley del país. En consecuencia, debe ser considerado en los tribunales de justicia como equivalente a un acto de la legislatura siempre que opere por sí mismo, sin la ayuda de ninguna disposición legislativa.”⁵⁸

En general, Estados Unidos no reconoce la jurisdicción de los tribunales internacionales. En Medellín v. Texas, la Corte Suprema sostuvo que el Artículo 94(1) de la Carta de las Naciones Unidas, que exige que los miembros de la ONU cumplan con las decisiones de la Corte Internacional de Justicia en cualquier litigio en el que sea parte, “no es una orden para los tribunales nacionales” y “no establece que Estados Unidos ‘debe’ o ‘deberá’ cumplir con una decisión de la CIJ.”⁵⁹ Además, la Corte Suprema expresó que la “ONU se lee como un ‘pacto entre naciones independientes’ que ‘depende para el cumplimiento de sus disposiciones en el interés y el honor de los gobiernos que son partes en él'”.

En consecuencia, corresponde a los miembros del Congreso proporcionar una reparación legislativa para las violaciones del derecho internacional. Por esta razón, el 21 de abril de 2021 introduje la H.R. 2725, La Ley de la Comisión de las Ocupaciones Norteamericanas (The Commission on United States Occupations Act), para iniciar el proceso de reconocimiento de las violaciones al derecho internacional y las injusticias cometidas contra el pueblo de la República Dominicana como resultado de las intervenciones militares de los Estados Unidos.⁶⁰

IV. H.R. 2725 – LA LEY DE LA COMISIÓN DE LAS OCUPACIONES NORTEAMERICANAS

La H.R. 2725, el primer proyecto de ley en la historia del Congreso en llevar un nombre en español, establece la Comisión para el Estudio y Desarrollo de Propuestas de Reconciliación para la República Dominicana. La Comisión está encargada de identificar y examinar la documentación probatoria relacionada con el interés de Estados Unidos en incorporar a la República Dominicana como territorio estadounidense en 1869, así como las ocupaciones militares estadounidenses entre 1916-1924 y 1965-1966. Además, la Comisión recopilará datos precisos sobre el número de víctimas y destrucción de propiedad privada, así como el impacto que tuvo la intervención en el futuro de la economía dominicana. Luego, la Comisión recomendará al Congreso las reparaciones apropiadas para el pueblo de la República Dominicana, incluida la emisión de una disculpa formal en nombre de los Estados Unidos, así como políticas, proyectos y recomendaciones apropiados para revertir los efectos de las ocupaciones. Es importante señalar que la Comisión debe abordar cómo sus recomendaciones de reparación se ajustan a las normas internacionales de reparación de daños y perjuicios tal como se entienden en los protocolos, las leyes y las conclusiones internacionales.

De aprobarse, esta ley sería el primer acto del Congreso que reconoce la necesidad de brindar una reparación al pueblo de la República Dominicana por haber sido objeto de una política exterior de intervencionismo militar por parte de los Estados Unidos. En 2016, la Organización de los Estados Americanos (OEA), de la que Estados Unidos es miembro, se disculpó públicamente por aprobar la ocupación militar de República Dominicana en 1965.⁶¹ La Declaración de Santo Domingo sostiene que la ocupación interrumpió el restablecimiento del orden constitucional en República Dominicana y reafirma los principios del derecho internacional, la Carta de las Naciones Unidas y la Carta de la OEA.⁶²

La promulgación de la H.R. 2725 afirmaría el compromiso de Estados Unidos de defender el derecho internacional y, por lo tanto, reforzaría nuestra capacidad de liderar a otras naciones en apoyo de los derechos humanos y el respeto de la soberanía en el escenario mundial. Como potencia mundial que se esfuerza por proteger los derechos humanos y los principios democráticos, Estados Unidos debe tener en cuenta las acciones de administraciones anteriores y demostrarle al mundo que rectificará los errores del pasado. Esto es tanto moralmente importante como necesario para cumplir con nuestras obligaciones en virtud del derecho internacional.

* Miembro de la Cámara de Representantes de los Estados Unidos (D-NY). Licenciatura en Queens College, 1978. El congresista Espaillat es miembro del Comité de Apropiaciones de la Cámara y del Comité de Educación y Trabajo. Es el primer inmigrante domínico-estadounidense y el primero que alguna vez fue indocumentado elegido para servir en la Cámara de Representantes de los Estados Unidos. El congresista Espaillat desea agradecer a Betzaida Sánchez por su trabajo en la introducción de la Ley H.R.2725 – La Ley de la Comisión de las Ocupaciones Norteamericanas, a José Acosta por traducir este artículo al español, a Candace Person y Mónica Garay por su apoyo, y a los editores de la Harvard Journal on Legislación (Revista de Harvard sobre Legislación).

** J.D., Universidad de California, Berkeley, Facultad de Derecho, 2021; Licenciatura en la Universidad de California, Los Ángeles, 2017. El Sr. Arreaga es Asesor de Políticas del Congresista Espaillat. Se ha desempeñado como miembro de la Sociedad de la Constitución Estadounidense, así como también como asistente legal en el Comité Judicial y Bancario del Senado.

Remedying Past Unlawful Military Interventions: The Case of the Dominican Republic

October 2, 2022 by dhimelman

Congressman Adriano Espaillat* and Francesco Arreaga**

I. INTRODUCTION

As the first Dominican American to serve in the United States Congress and a member of the House Appropriations Subcommittee on State, Foreign Operations, and Related Programs, I deeply care about the United States’ relations throughout the Caribbean and commitments to ensuring that we are fulfilling our ideals of equality, liberty, opportunity, and democracy on the world stage. Maintaining diplomatic ties between the United States and the Dominican Republic is especially important to me as I was born in Santiago de los Caballeros, Dominican Republic and came to the United States as a young child. Fostering this important relationship requires acknowledgment and redress of the United States’ past military interventions and occupations of the Dominican Republic. Growing up, my family taught me about the United States’ military interventions, and I recall seeing U.S. Marines on patrol in the Dominican Republic in 1965 when I briefly returned to Santo Domingo, without yet fully understanding their significance or the impact their presence had on my community.

This essay details the United States’ history of intervention in the Dominican Republic, including President Ulysses S. Grant’s desire to annex the Dominican Republic, the 1916-1924 Occupation, U.S. support for the oppressive Trujillo regime, and the 1965-1966 Occupation. It then outlines how the two military occupations by the United States violated the Dominican Republic’s sovereignty. It concludes by explaining how legislation I introduced in the 117th Congress, H.R. 2725 – La Comisión de las Ocupaciones Norteamericas Act (Commission on United States Occupations Act) – is an important step to repairing the damage caused by the United States’ military interventions in the Dominican Republic, which will bolster the legitimacy of the United States’ defense of human rights and international law on the world stage.

II. A HISTORY OF INTERVENTION IN THE DOMINICAN REPUBLIC

A. President Grant Attempts to Annex the Dominican Republic

After gaining independence from Haiti in 1844 and Spain in 1865, the Dominican Republic faced a period of political instability, rising national debt, and the continued threat of invasion. At the same time, the United States adhered to the Monroe Doctrine, a policy establishing that countries in the Western Hemisphere were not to be considered subjects for colonization by any European powers.¹

Fearing that a European power would take control of the Dominican Republic, on November 29, 1869, President Ulysses S. Grant entered into a treaty with the Dominican Republic to annex the nation in exchange for $1.5 million and payment of its debt.² On May 31, 1870, President Grant sent a message to the United States Senate regarding the treaty to annex the Dominican Republic, expressing that “the acquisition of San Domingo is an adherence to the Monroe doctrine; it is a measure of national protection; it is asserting our just claim to a controlling influence over the great commercial traffic soon to flow from east to west.”³ The treaty required two-thirds of the votes in the Senate to be ratified. On June 30, 1870, the Senate, by a vote of 28-28, rejected the treaty of annexation.⁴

On January 12, 1871, Congress enacted a joint resolution creating a Commission of Inquiry to Santo Domingo.⁵ Frederick Douglass was a member of this Commission and supported efforts to annex the Dominican Republic.⁶ The Commission of Inquiry issued its report to Congress detailing how the President of the Dominican Republic and his cabinet “manifested a liberal and accommodating spirit” to the treaty of annexation.⁷ It also noted that people in the Dominican Republic would prefer independence to annexation, but assessed that “independence is impossible” – because the Dominican Republic had “never maintained any real independence” before.⁸ The Commission did not make an official recommendation on annexation, as that was beyond their Congressional mandate.⁹ Ultimately, the United States Congress did not move forward with President Grant’s desire to annex the Dominican Republic.

B. The American Occupation from 1916-1924

By 1904, President Theodore Roosevelt had established a new foreign policy doctrine to keep foreign powers out of the Western Hemisphere and ensure the payment of debts to international creditors. The Roosevelt Corollary to the Monroe Doctrine established that the United States would act as “an international police power” in the Western Hemisphere.¹⁰ In practice, this doctrine served as a justification for U.S. intervention in several countries across the Western Hemisphere.¹¹

In accordance with the Roosevelt Corollary, the Convention of 1907 between the United States and the Dominican Republic authorized the President of the United States to appoint a general receiver to collect customs duties accrued by the Dominican Republic until its outstanding bonds were paid.¹² Following the assassination of Dominican President Ramón Cáceres in 1911, the Dominican Republic entered a period of continued political instability preventing it from meeting its fiscal obligations. The United States intervened by sending 750 Marines to the Dominican Republic, cutting off funds from the customs receivership, and placing Monseñor Adolfo Nouel as interim president. ¹³

On May 5, 1916, approximately 280 American troops were deployed to support President Jiménez. Just two days later, however, President Jiménez resigned.¹⁴ A civil war ensued, and the United States ultimately sent 3,000 troops to occupy the Dominican Republic.¹⁵ On July 4, 1916, Dominican General Carlos Daniel and Captain Maximo Cabral, resisted the American army that was advancing towards Santiago during the Battle of La Barranquita.¹⁶ Cabral and most of his men died in combat on July 4, 1916.¹⁷ Historical accounts indicate that U.S. Marines “frightened, insulted, abused, oppressed, injured, and even killed hundreds of Dominicans, combatants and noncombatants alike.”¹⁸ Records from the U.S. Department of State admit that “U.S. Senate hearings proved embarrassing when Dominican witnesses argued that the occupation violated international law and contravened Wilson’s Fourteen Points, and discussed the mistreatment of imprisoned Dominican insurgents.”¹⁹ The American occupation of the Dominican Republic lasted eight years, causing great resentment amongst citizens of the Dominican Republic. At least 1,000 people were killed during this conflict.²⁰

C. United States’ Support for Trujillo’s Oppressive Regime

During the American occupation of the Dominican Republic, the United States formed a constabulary composed of Dominican nationals trained by U.S. Marines to police the country. Amongst these nationals was Rafael Leonidas Trujillo Molina, a “favorite of the Marine staff.” ²¹ When the United States withdrew from the Dominican Republic in 1924, Trujillo commanded the national army. In 1930, General Trujillo ran for the presidency and won, assuring “his election by machine-gun suppression of all opposition.”²²

Trujillo retained decisive control over the Dominican Republic for more than three decades, monopolized several industries to ensure that the economic gains disproportionately benefited his family, and assembled a secret police force to censor the press and kill dissenters.²³ Trujillo and his family members took control of the salt, tobacco, and beer industries, while also acquiring approximately one third of the nation’s cultivated land.²⁴ By 1938, an American journalist and historian wrote that “Trujillo among other things, is a product of gangsterism, banditry, militarism, and our own marine occupation.”²⁵ Throughout President Roosevelt’s administration, the United States supported Trujillo despite his repressive regime because he served U.S. financial interests and protected foreign holdings in the Dominican Republic.²⁶

By the 1950s, amid the Cold War, President Dwight D. Eisenhower’s administration was focused on preventing the spread of communism. In 1958, President Eisenhower ended arms shipments to Cuba and suspended military aid to Trujillo. In April 1960, President Eisenhower approved a State Department memorandum regarding policies to be followed “‘in the event of the flight, assassination, death, or overthrow of Trujillo.’”²⁷ The memorandum detailed how the United States was ready to “dispatch warships to Dominican waters or to land troops on Dominican soil” to prevent the rise of a regime that was sympathetic to Fidel Castro in Cuba.²⁸ Subsequently, various representatives of the United States traveled to the Dominican Republic to convince Trujillo to resign. Trujillo resisted and stated, “you can come in here with the Marines, and you can come in here with the Army, and you can come in here with the Navy or even the atomic bomb, but I’ll never go out of here unless I go on a stretcher.”²⁹

In June 1960, the Assistant Secretary of State for Latin American Affairs gave unofficial approval to the Central Intelligence Agency (CIA) to provide clandestine assistance to dissidents in the Dominican Republic necessary to develop a force to overthrow Trujillo.³⁰ On May 30, 1961, Trujillo was assassinated by seven Dominican nationals.³¹

D. The Second Occupation of the Dominican Republic (1965-1966)

After the murder of Rafael Trujillo, Dominican Revolutionary Party founder Juan Bosch was elected president. Bosch was toppled by a military coup just seven months into his term, and the Dominican Republic plunged into political turmoil. On April 28, 1965, President Lyndon B. Johnson ordered troops into the Dominican Republic through “Operation Power Pack” to protect American lives and property in the Dominican Republic.³² President Johnson, however, also declared that he had taken this military action to prevent the establishment of a “communist dictatorship.”³³ Similarly, the U.S. Ambassador to the Dominican Republic William Tapley Bennett, Jr., described how intervention was necessary to “prevent another Cuba.”³⁴

On April 28, 1965, more than 22,000 U.S. troops, supported by forces provided by several member states of the Organization of American States initiated a military intervention in the Dominican Republic.³⁵ Ultimately, 42,000 American armed forces were deployed to the Dominican Republic and remained there until September 1966.³⁶ More than 3,000 Dominicans and 31 American servicemembers lost their lives.³⁷

III. VIOLATIONS OF INTERNATIONAL LAW REQUIRE REPARATIONS

A. The Chorzón Factory Case on Reparations

The principle of providing reparations to compensate for a breach of international law has existed since before the 1945 creation of the United Nations (UN) Charter. In 1927, the Permanent Court of International Justice held in the Chorzów Factory case that “it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.”³⁸ In addition, the court explained that reparations “must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”³⁹ In other words, when a country engages in an action that violates international law, it not only has a moral obligation to correct that wrong, but also a legal obligation to do so under international law.

B. The UN Charter

After World War II, the United States coordinated with other nations to create the United Nations. The United States Senate ratified the UN Charter on July 28, 1945, by a vote of 89–2.⁴⁰ The Charter establishes the basic framework for the jus ad bellum standards which outline when a state may legally engage in armed conflict and reaffirms the UN’s commitment to respect the sovereignty of each UN member nation.

Article 2, paragraphs 1, 2, and 4 of the United Nations Charter declare that the members of the U.N. shall act in accordance with the following principles:

1. The Organization is based on the principle of the sovereign equality of all its Members;
2. All Members shall settle their international disputes by peaceful means; and
3. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.⁴¹

Article 33 states that “[t]he parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”⁴²

Resolution 3314, adopted by the UN General Assembly on December 14, 1974, defines aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.”⁴³ Furthermore, “the invasion or attack by the armed forces of a State of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof” qualifies as an act of aggression.⁴⁴

Finally, Article 92 of the UN Charter establishes the International Court of Justice as the principal judicial organ of the United Nations, and Article 94 states that “[e]ach member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”⁴⁵

C. The United States’ Military Invasions of the Dominican Republic Constituted Violations of International Law

Based on the principles outlined in the previous section, it is clear that the United States’ military interventions in the Dominican Republic violated fundamental principles of international law. These military interventions were acts of aggression, as described in UN Resolution 3314 and disregarded the territorial and political sovereignty of the Dominican Republic. The Monroe Doctrine and Roosevelt Corollary were used to rationalize acts of aggression against countries in the Western Hemisphere like the Dominican Republic, but such rationalizations do not absolve our nation of the moral stain left by the violations of international law as well as the devastating impact these actions had on civil society.

D. Nicaragua v. United States

Any country seeking reparations from the United States for violations of international law, will likely be unable to successfully obtain a remedy from an international tribunal. The case of Nicaragua v. United States exemplifies the limits of international law by showing the barriers to enforcing judgments by international tribunals. Specifically, this case serves as a useful precedent to show why the Dominican Republic would likely be unable to obtain a remedy through an international tribunal for the United States’ military interventions in the twentieth century.

On April 9, 1984, Nicaragua filed an application to institute proceedings against the United States in the International Court of Justice (ICJ), “concerning a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua.”⁴⁶ Following the ICJ’s determination that it had jurisdiction to hear this case, the United States Department of State announced that it did not recognize the ICJ’s jurisdiction.⁴⁷ On February 22, 1985, President Ronald Reagan affirmed during the first news conference of his second term that it was his objective to “remove” the “present structure” of the government in Nicaragua.⁴⁸

On June 27, 1986, the Court issued its judgement, holding that the United States was in “breach [of] its obligation under customary international law not to intervene in the affairs of another State” by “training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua.”⁴⁹ In addition, the ICJ found that “the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law.”

The Court noted that the United States Congress “expressed the view that the Nicaraguan Government had taken ‘significant steps towards establishing a totalitarian Communist dictatorship.’”⁵⁰ The Court, however, refused to “contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.”⁵¹ Such a finding would undermine the “principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.”⁵²

On July 31, 1986, the United States vetoed UN Resolution S/18250, which requested an “urgent and solemn call for full compliance with the judgment of the International Court of Justice” in Nicaragua v. United States.⁵³ In October 1986, the United States vetoed a similar initiative, Resolution S/18428.⁵⁴ On November 3, 1986, the UN General Assembly adopted Resolution 41/31, calling for immediate compliance with the ICJ’s judgment and requesting that the Secretary-General keep the General Assembly informed about implementation of the resolution.⁵⁵ After sustained pressure, Nicaragua informed the ICJ in September 1991 that it no longer wanted to continue the proceedings against the United States and the case was removed.⁵⁶

Apart from the challenges of obtaining reparations from international tribunals, the Supreme Court of the United States has also established that decisions by the ICJ are not binding domestic law.⁵⁷

E. Congress Must Provide Remedies for Violations of International Law

The Supremacy Clause of the United States Constitution makes treaties the supreme law of the land.⁵⁸ The U.S. Supreme Court held in Foster v. Neilson that in the United States, “[o]ur Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”⁵⁹

As a general matter, the United States does not recognize the jurisdiction of international tribunals. In Medellín v. Texas, the Supreme Court held that Article 94(1) of the United Nations Charter, which requires members of the UN to comply with decisions of the International Court of Justice in any case of which it is a party, is “not a directive to domestic courts” and “does not provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision.”⁶⁰ In addition, the Supreme Court expressed that the “U.N. reads like a ‘compact between independent nations’ that ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.’”⁶¹

Consequently, it is incumbent upon members of Congress to provide a legislative remedy for violations of international law. For this reason, on April 21, 2021, I introduced H.R. 2725, La Comisión de las Ocupaciones Norteamericanas Act (The Commission on United States Occupations Act), to start the process of acknowledging the violations of international law and injustices committed against the people of the Dominican Republic as a result of the United States’ military interventions.⁶²

IV. H.R. 2725 – LA COMISIÓN DE LAS OCUPACIONES NORTEAMERICANAS ACT

H.R. 2725, the first bill in the history of Congress to be named in Spanish, establishes the Commission to Study and Develop Reconciliation Proposals for the Dominican Republic. The Commission is charged with identifying and examining evidentiary documentation relating to the United States’ interest in incorporating the Dominican Republic as a U.S. territory in 1869, as well as the U.S. military occupations between 1916-1924 and 1965-1966. In addition, the Commission will compile accurate data regarding the number of casualties and destruction of private property, as well as the impact that the intervention had on the future of the Dominican economy. The Commission will then recommend to Congress appropriate remedies for the people of the Dominican Republic, including the issuance of a formal apology on behalf of the United States, as well as appropriate policies, projects, and recommendations to reverse the effects of the occupations. Importantly, the Commission must address how its recommendations for remedies comport with international standards of remedy for wrongs and injuries as understood by international protocols, laws, and findings.

If passed, this law would be the first Congressional act that recognizes the need to provide a remedy to the people of the Dominican Republic for being subjected to a foreign policy of military interventionism by the United States. In 2016, the Organization of American States (OAS), of which the United States is a member, apologized publicly for approving the military occupation of the Dominican Republic in 1965.⁶³ The Declaration of Santo Domingo, acknowledges that the occupation disrupted the restoration of constitutional order in the Dominican Republic and reaffirmed the principles of international law, the United Nations Charter, and the Charter of the OAS.⁶⁴

Enacting H.R. 2725 would affirm the United States’ commitment to upholding international law and thereby bolster our ability to lead other nations in support of human rights and respect for sovereignty on the world stage. As a global power that strives to protect human rights and democratic principles, the United States must reckon with the actions of previous administrations and demonstrate to the world that we will rectify past wrongs. This is both morally important and necessary to fulfill our obligations under international law.

* Member, United States House of Representatives (D-NY). B.A., Queens College, 1978. Congressman Espaillat serves on the House Appropriations Committee and the Committee on Education and Labor. He is the first Dominican American and formerly undocumented immigrant elected to serve in the U.S. House of Representatives. Congressman Espaillat would like to thank Betzaida Sanchez for her work in introducing H.R.2725 – La Comisión de las Ocupaciones Norteamericanas Act, Jose Acosta for translating this article to Spanish, Candace Person and Monica Garay for their support, and the editors of the Harvard Journal on Legislation.

**J.D., University of California, Berkeley, School of Law, 2021; B.A., University of California, Los Angeles, 2017. Mr. Arreaga is a Policy Advisor to Congressman Espaillat. He has served as a fellow at the American Constitution Society, as well as a law clerk on the Senate Judiciary and Senate Banking Committee.

Subnational Diplomacy: The Key to Strengthening U.S. International Relations

May 30, 2022 by sbreggia

Representative Ted Lieu*

I. INTRODUCTION

When SARS-CoV-2 (“COVID-19” or the “coronavirus”) began spreading in the United States in early 2020, it quickly became apparent that we were facing a global crisis with consequences for our local communities. The Trump White House decided early in the pandemic to cede most decision-making to the states and local municipalities.¹

That approach was not illogical. Community health departments and local governments have a good grasp of the unique demographics in their areas and can be quicker to respond to challenges as they arise. But for that strategy to work, state and local governments needed significant support. Unfortunately, the hands-off, uncoordinated approach from the federal government meant local governments did not have the time and resources they desperately needed to crush the virus.²

In confronting a pandemic that did not care about geographic boundaries, local officials were often forced to improvise without help from the federal government. States opted to coordinate with each other³ and with foreign counterparts.⁴ Some states struggled to track down adequate personal protective equipment (“PPE”) for healthcare workers⁵ while others pleaded for federal and international help to expand testing.⁶ In many ways, the pandemic demonstrated that the national government cannot always be as nimble as city and state governments can be when it comes to responding to crises.

While international relations is mainly the responsibility of national governments, diplomacy can be practiced at every level of government. Crises such as COVID-19 and difficult global issues like climate change present opportunities for subnational diplomacy—diplomacy conducted by officials at various levels of government below the national level—to overcome barriers that have national governments stuck in the mud. From governors to mayors to tribal leaders, relationships between officials at the subnational level have and will continue to open multiple diplomatic channels.

At the height of the pandemic, the lengths to which local leaders were willing to go to secure supplies for their communities was staggering. In April 2020, Illinois Governor J.B. Pritzker coordinated a secret charter plane to bring PPE from Shanghai, China. Governor Pritzker’s plan was meant to circumvent the Trump administration’s alleged seizing of PPE shipments from abroad.⁷ A hallmark of the desperation and supply chain challenges at the time, the state of Illinois was forced to hand million-dollar checks to intermediaries in parking lots to get more masks, gloves, and gowns for healthcare workers.⁸

Perhaps the most high-profile example of subnational diplomacy on the fly occurred in Maryland. Governors like Larry Hogan, who were left on their own to address the ever-worsening crisis, were desperate to build up testing and contact-tracing programs. At the time, testing was considered the key to containing the pandemic.⁹ The initial flaws in the federal Center for Disease Control’s tests set the country back by months in terms of containment, and South Korea had a far more effective testing apparatus than the United States. Hogan and his wife made a direct ask of Korean President Moon Jae-in, touting the “special relationship between Maryland and the Republic of Korea.”¹⁰ When the tests arrived in Maryland, the Governor called it “Operation Enduring Friendship” and touted his diplomatic efforts to secure 500,000 COVID-19 tests from South Korea.¹¹

Meaningful, high-profile subnational diplomacy existed well before the pandemic.¹² For example, during the Cold War, communities around the country used their local political power to vocalize opposition to nuclear armament.¹³ In the 1980s, upwards of 4,000 communities in seventeen countries, including the United States, declared themselves “nuclear-free zones” in response to escalating tensions between the United States and the Soviet Union.¹⁴ In 1987, 700 United States mayors and city council members gathered at the National League of Cities Congress in Las Vegas and signed onto the Nevada Declaration, which called for a national ban on nuclear testing.¹⁵

Today, over fifty-five percent of the world’s population live in cities.¹⁶ That number is expected to climb to sixty-eight percent by 2050.¹⁷ Some local leaders oversee economies comparable to those of entire countries. Large cities and counties are claiming more and more economic power in the United States, with one percent of counties in the United States accounting for one-third of the country’s gross domestic product (“GDP”) in 2018.¹⁸ Los Angeles County, for example, has an output of $710.9 billion GDP, the equivalent of Saudi Arabia.¹⁹ The state of California is the fifth-largest economy in the world, making its GDP larger than that of the United Kingdom and Russia.²⁰

Rural jurisdictions and states with rural areas have also benefitted from subnational diplomacy. Foreign officials routinely visit agricultural areas and ink contracts for various agricultural products.²¹ When the Director General of the Hebei Provincial Agricultural Department visited the United States to discuss agriculture and animal husbandry, did he visit the State Department in Washington, D.C.? No, he went to Kansas and met with the Kansas Department of Agriculture and Kansas Department of Commerce.²²

When subnational actors join forces, they can have an undeniable and far-reaching impact. The C40 Cities Climate Leadership Group, a coalition of 97 cities from around the world committed to addressing climate change currently chaired by the Los Angeles Mayor, represents more than 700 million people and a quarter of the global economy.²³ This subnational effort to address climate change represents a large movement by local leaders to find commonality with foreign counterparts to advance shared goals, even in the face of stalled efforts at the national level. We have seen these principles apply to local responses to the pandemic as well.

The COVID-19 pandemic demonstrates in the starkest terms what happens when local governments do not have the federal support to address a crisis. It also shows us that states and local governments are already coordinating with foreign counterparts and will continue to do so. What is missing is direct and explicit federal support to help achieve shared goals. In the case of COVID-19, coherent federal support in the diplomatic space would have meant local governments would have had access to information and potentially resources from allies abroad contending with outbreaks in their communities. That type of knowledge-sharing may have saved lives and offered valuable insight into the United States’ COVID response. Instead, the patchwork of local responses left our communities vulnerable to outbreaks. There is much that cities and states can—and already do—learn from other countries through diplomacy, and the federal government has the tools, knowledge, and resources to expand those efforts.

While subnational diplomacy has become increasingly prevalent in United States cities and states as mayors and governors recognize the power of international cooperation for their constituents, the federal State Department has no dedicated structure to support these local efforts to engage with the international community. In 1979, the State Department created an Ambassador-at-Large for Liaison with State and Local Government.²⁴ But since then, these functions have been folded into a parade of temporary stand-alone offices or into the Bureau of Public Affairs.²⁵ This lack of focused federal support for city and state governments is the reason for the City and State Diplomacy Act,²⁶ which will support state and local diplomacy with counterparts abroad. The bill will establish an office of city and state diplomacy at the State Department, which will coordinate overall United States policy, programs, and resources in support of city and state engagement with foreign governments and officials. This is a vital tool for our democracy because it ensures a coordinated effort between local officials and the State Department, thereby streamlining and strengthening both federal and local diplomatic aims.

The pandemic has provided a lens through which to view the value of subnational diplomacy. It does not undermine national level diplomacy but rather enhances it. By leveraging federal resources to support cities and states, the State Department can advance foreign and domestic policy goals relating to economic prosperity and geopolitical stability—and help local governments reap the full benefits of foreign engagement in the process.

The City and State Diplomacy Act also provides two other benefits. It helps us push back on near-peer competitors like China that use a whole of government approach to achieve their objectives, by giving United States state and local leaders the tools and knowledge needed to navigate pressure and exploitation by foreign officials. And it helps diversify and increase the actors involved in our nation’s foreign policy. Instead of just having one federal department with a limited number of overworked foreign service officers and ambassadors (with relatively few minorities),²⁷ we can leverage the expertise, talent, and energy of tens of thousands of city, county, and state officials from around the country who are going to be engaged abroad with or without federal support.

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