BELLINGHAM, Wash. — In an action that stems from a legal dispute over a Blaine, Wash., couple's backyard wall on the U.S.-Canada border, President Bush has fired the U.S member of the International Boundary Commission, Dennis Schornack.
Or has he?
"We are preparing responses, because the president has exceeded his authority and has acted illegally" in firing Schornack, said attorney Elliott Feldman, who represents the International Boundary Commission.
Or does he?
In documents filed in U.S. District Court in Seattle, Department of Justice lawyers say that they, not Feldman, are the legal representatives for the commission in a lawsuit filed by Herbert and Shirley-Ann Leu of Blaine. The Leus' lawsuit asks the court to uphold their property rights to keep their wall, despite the boundary commission's demands that they remove it.
Shirley-Ann Leu said she and her husband had no idea what they were getting into when they hired a contractor to build the four-foot-high concrete wall to prevent their back yard dirt from washing into an adjoining ditch. But that ditch behind their home is also the 49th parallel, boundary between the U.S. and Canada.
The Leus said they had no idea that the International Boundary Commission, a joint panel with a commissioner from both countries, has been enforcing a so-called "boundary vista" for many decades. According to the commission's interpretation of a 1925 treaty, the commission has the legal authority to demand removal of any structure that encroaches within 10 feet of the border from either side.
In early 2007, a boundary commission engineer visited the Leus to warn them that their wall was two or three feet inside the boundary vista and would have to be removed. A few weeks later, Schornack himself stopped by, accompanied by his Canadian counterpart, to hand the Leus a written notice giving them 45 days to have the wall removed.
The case attracted the attention of the Pacific Legal Foundation, a property rights advocacy group. Foundation attorneys agreed to represent the Leus for free, and filed the lawsuit asking a federal judge to stop the boundary commission from removing the wall. The lawsuit contends that commission is violating the couple's property rights and going beyond its legal authority under the treaty.
Then things got complicated.
In a telephone interview, Schornack said he expected the Justice Department to back him up and defend his legal authority to demand the removal of the Leus' wall. Instead, Schornack said, department lawyers subjected him to "almost unbearable pressure" to approve some kind of settlement that would be favorable to the Leus.
"They indicated to me they had an ideological agenda and that agenda did not match up with the boundary commission's agenda and the national security agenda," Schornack said. "I could not trust them. ... Instead of backing me up, they cut me down."
As he sees it, Bush administration officials are putting property rights ideology ahead of the national security benefits of maintaining a clear international boundary.
Feldman said he too got the idea that the Justice Department was more interested in property rights than in upholding the commission's authority to keep the border clear.
"In our view, making a deal means the wall would stay, and that's unacceptable," Feldman said.
Schornack and Feldman contend that the treaty creating the commission empowers the U.S. president to name a new commissioner only when a commissioner dies or resigns, and they will ask U.S. District Judge Marsha Pechman to rule on the matter as part of the Leu lawsuit.
Both Schornack and Feldman acknowledged that in recent years, commissioners have resigned at the end of a president's term to allow an incoming president to name his own candidate.
That was how Schornack got the job in 2001, when the man whom President Clinton had appointed to both the boundary commission and the International Joint Commission resigned. Bush then named Schornack, a Republican Party stalwart in Michigan, to both posts.
The boundary commissioner collects no salary, but Schornack said he has been paid $137,500 a year as U.S. chairman of the International Joint Commission, which handles water and environmental issues along the northern border. Schornack said he has been dismissed from both posts.
The letter terminating Schornack from his commission posts was signed by a White House personnel official and stated that his firing was "pursuant to the direction of the President."
Schornack said he doubts that Bush knows anything about the matter, and he still supports the president. Campaign finance records indicate that Schornack contributed $2,000 to Bush's 2004 reelection campaign.
The Leus' attorney, Brian Hodges of Pacific Legal Foundation, confessed to bewilderment at the turn of events.
"It's a very odd situation," Hodges said. "In all my years of legal service I've never seen anything like this."
He rejected Schornack and Feldman's contention that the Justice Department is ready to do his foundation's bidding in this case.
"These claims that Schornack and his attorney are making, that we have some sort of back-door deal, is just insane," Hodges said.
He also scoffed at Schornack's contention that the Leus' wall is a national security issue.
"It's just seizing on the hyperbole of the day," he said.
The U.S. Attorney's office in Seattle had no comment on the case, and the White House press office did not respond to a request for a comment.
Shirley-Ann Leu said she doesn't feel sorry for Schornack.
"He was very rude to me," she said. "He talked down to me. He just stared at me. ... He made me feel like a criminal."
WHAT HAPPENS NEXT?
U.S. District Court Judge Marsha Pechman must decide:
_Does the U.S. president have the authority to fire the U.S. member of the International Boundary Commission?
_Is the commission a branch of the U.S. government to be represented by the Justice Department, or an independent agency?
_Does the commission have the authority to demolish structures on private land within 10 feet of the border?
_No hearing dates have been set.