David Brandishes a Slingshot
On April 19, 1999, two F-18 jets mistook the navy’s red-and-white checked observation post on the island of Vieques, Puerto Rico for a target, and dropped 500 pound bombs on it. Vieques resident David Sanes was working at the observation post as a security guard for the navy. He was killed almost instantly. Three other men from Vieques were seriously injured. Sanes’ death sparked a wave of protest—civil disobedience, marches, petitions, resolutions, and lobbying—which resulted in the promise, made by then U.S. President Clinton and reiterated by his successor, that the navy will leave Vieques by May 2003. The navy says these plans will not be affected by war on Iraq. As veterans of earlier navy promises, the Viequenses, and the people of Puerto Rico, are wary.
That promise from a U.S. president represents an unprecedented victory for Puerto Rico. It is a victory not only over the Colossus of the North, to whom Puerto Rico is still in colonial thrall, but also over the perennial divisions created by the uncertainty about its relation to the United States and the rest of the world. To appreciate the significance of that victory, some history is necessary.
Vieques is a fifty-two-square-mile island about fifteen miles to the southeast of the main island of Puerto Rico. It has a population of 9,400 and is one of Puerto Rico’s seventy-eight municipalities. According to the United States Supreme Court, Puerto Rico is legally an unincorporated territory which belongs to, but is not part of the United States. Under U.S. law, Puerto Rico is neither an independent nation, nor a state. Its official title Estado Libre Asociado literally means free associated state, but the United States has decreed that the only acceptable translation is commonwealth. Puerto Rico enjoys none of the sovereignty of members of the British Commonwealth. Instead, it has a degree of autonomy over local government, but no power whatsoever over issues related to international relations, defense, and relations with the United States. U.S. laws, except those few specifically determined locally inapplicable are applied in Puerto Rico by U.S. law enforcement and regulatory agencies. One symbol of this relationship is the United States District Court for the District of Puerto Rico.
Puerto Rico enjoyed considerably more autonomy in 1898, when it was invaded by the United States, than it does today. It was then an autonomous territory of Spain, with its own legislature, courts, and money. Invaded and colonized by the Spanish during the previous four centuries, it had developed a unique culture within clearly defined natural borders. As the result of the nineteenth century wars of liberation in Latin America and Puerto Rico’s close collaboration with the movements that generated them, Spain negotiated a Treaty of Autonomy with Puerto Rico. The relationship between Puerto Rico and Spain, which included deputies sent to the equivalent of the Spanish legislature, could not be altered without mutual consent.
After the U.S. Navy invaded Puerto Rico at Guánica and bombarded San Juan (resulting in civilian casualties) during W. Randolph Hearst’s splendid little war, the United States demanded Spain cede Puerto Rico as part of the price of peace. Its eastern coast would provide a coaling station and strategic outpost in the Caribbean for the navy. Under the December 10, 1898 Treaty of Paris (in which no representative of Puerto Rico was involved or consulted), Spain purported to cede to the United States as war booty what it had no right to cede: the territory, seas, natural resources, and people of Puerto Rico. Vieques was part of that war booty.
Between 1941 and the mid-1950s, the U.S. Navy expropriated 26,000 of Vieques’ 33,000 acres by process of eminent domain, as an annex to its huge Roosevelt Roads base located on Puerto Rico’s eastern coast at Ceiba. Only the largest landholders—primarily the sugar companies—were compensated, resulting in the forced eviction, often on little or no notice—of thousands of families. Many lived under something similar to a sharecropping system under which they obtained rights to the land and homes in which they lived, farmed, and supported their families, often through fishing, between the sugarcane harvesting and planting seasons. Others were small landholders whose families had lived in Vieques since the time it was a refuge from the Spanish Conquest for the indigenous Tainos, and cimarrones—free Africans or escaped slaves. Because they never registered their holdings in the Registry of Deeds, they were neither notified of the proceedings by which the navy acquired their lands, nor compensated for them.
Many Viequenses recall being told the navy would leave when the war was over. But for the Viequenses, the war never ended. The navy acquired the eastern and western portions of Vieques to conduct ship-to-shore, air-to-ground, small arms, and other kinds of target practice, to practice amphibious landings, and to store weapons and ammunition in hundreds of bunkers. They also used it, in conjunction with weapons manufacturers and related industries, to test napalm, Agent Orange, and all sorts of conventional and unconventional weapons and ammunition. The navy also advertised Vieques as a site for one stop shopping for NATO allies that wanted to practice amphibious and land war simultaneously.
It was a formidable military presence that the civilian population of Vieques set out to challenge after the death of David Sanes. The most powerful weapon discovered by the people of Vieques is the practice of putting their bodies in the line of fire during target practice. Theoretically, as soon as the navy is aware of civilians on the firing range, it is fouled, and exercises must be suspended. Between April 21, 1999, and May 4, 2000, thousands of civilians overran the navy’s Camp García on the eastern end of Vieques, where David Sanes was killed. The December 2000 agreement between Governor Rosselló of Puerto Rico and President Clinton provided that the protesters would be removed, and Puerto Rico would cooperate in securing the range to permit resumption of the bombing. In the meantime, the people of Vieques would have the opportunity to vote on whether the navy should stay or leave. Two hundred people were removed from protest camps on May 4, 2000. Ten days later, civilians began showing up on the firing range again. As of December 2002, nearly 2000 people have participated in this human embrace of what Puerto Ricans call their daughter island (Isla Nena). I have had the honor of representing almost a hundred of them. Here are some of their stories.
Too Dangerous for Bail, Father Mauro Simpson
It was about 3 o’clock on a Sunday afternoon. I broke a rule of survival and checked the office fax machine. A letter from a law office in South Dakota was inquiring about a seventy-seven-year-old Benedictine priest, who was being detained without bail in the federal jail near San Juan.
The letter was from one of his brothers, who had practiced law for the last forty years. He wanted to know what was going on. The offense the priest had been charged with was punishable by a maximum of six months in jail. He had not been tried. He was not young, and suffered from diabetes. Why was he in jail?
The facts were simple: Fr. Simpson had been arrested for stepping on some of the navy’s 26,000 acres in Vieques. He was one of scores of religious men and women arrested for civil disobedience in Vieques, consistent with the official policies of the major denominations, including the Diocese of Caguas, of which Vieques is a part. These policies, developed over decades of theological study and experience in Vieques, supported those who defied the law in obedience to the precept that if you want peace, struggle for justice. The diocese had actually set up a camp on navy lands to provide spiritual accompaniment to the protesters. Fr. Simpson had been part of that camp.
The priest was detained because he refused to promise the magistrate conducting his bail hearing that he would not return to protest again. The logic of the detention order defies paraphrase. The magistrate wrote:
[T]hose now training are to immediately engage in active service in the war against terrorism upon completing their training sessions. Thus, by interrupting or threatening to interrupt military maneuvers at a time in which our daily lives evolve at an extreme or heightened security level, given the continued threat posed by terrorists, by itself is an act that places the military readiness and the Nation’s security at risk while endangering the community’s safety.
This seventy-seven-year-old priest thus joined the ranks of those preventively detained as either targets of, or obstacles to, the war on terrorism whose freedom would pose a danger to the community. His brother wanted to know, Do you have the same federal court in Puerto Rico that we have up here?
There was only one truthful answer: yes, and no. Puerto Rico is a colony. In a colony, everything about the metropolis is scrupulously imitated, and nothing is the same.
Félix Montalvo, Homicide Detective, Guilty of Civil Disobedience
Accompanying Fr. Simpson in his deliberate law-breaking was Félix J. Montalvo, a much-decorated retired homicide detective from New York. The judge declined to glance at his framed awards, including a commendation from the Secret Service.
The judge showed no more interest in the motion to dismiss the charges in the interest of justice. The motion pointed out that if Mr. Montalvo is called to testify regarding cases he has investigated, his credibility could be compromised by a criminal conviction. This motion was denied. Fr. Simpson’s motion, based on his obedience to the official policy of his diocese, suffered the same summary fate, notwithstanding the presence of the bishop, eminent experts in theology and law, and the priest’s abbot.
At sentencing, Mr. Montalvo explained that the same things that made him a good cop compelled him to commit civil disobedience: respect for human life, the truth, and the law. Firing depleted uranium, as the navy admitted doing in Vieques, is not only dangerous, it is illegal. Fouling the seas by sinking the USS Killen, used to test the effects of nuclear bombs on navy warcraft, close to the shores of Vieques, puts human life in peril. From what is the navy protecting the people of Vieques?
Francisco Saldaña, Former partner of the Navy in its Dirty Tricks’
Sixty-five-year-old municipal assemblyman and retired teacher Francisco Saldaña told his judge before being sentenced:
I have two children in the navy of which I feel extremely proud. And I also served in the military. But this pride is erased by the immense repudiation that I feel for the abuses the navy is committing in my land in Vieques.
I live in Esperanza, a small community of fishermen, where my father, my uncle, practically the entire family has lived from the sea as fishermen….I used to belong to a pro-navy group whose purpose was chaos and destruction….My specific mission was the destruction of the fisherman’s association in Esperanza, the focal point of the attempts to rescue the Vieques lands from the navy.
Several decades ago, Mr. Saldaña and his wife, Lucy, left the organization when they learned of plans to kill a leader of the anti-navy movement. As a result, he was briefly kidnapped; an apparent plan to kill him was foiled by his rescue. Thus, they lost their fear of sharing the treatment reserved for Communists and joined in organizing to let the world know about the navy’s abuses in Vieques.
Rather than apologize for trespassing, as the prosecutor argued he should, Mr. Saldaña accused the navy of trespass. First, the navy trespassed when it expropriated the lands, bulldozed people’s homes as they watched, and dumped entire families, with whatever possessions and domestic animals they could carry, into abandoned sugar cane fields where women gave birth, during hurricane season.
The second trespass, he added, is when the uranium, mercury, and other pollutants generated by the military trespass into our bodies. Suffering from multiple ailments traced to heavy metals in his body, Mr. Saldaña asked:
Who will sentence these people for trespassing into the civilian area?
Your Honor, Vieques is dying. Vieques is disintegrating. Vieques is disappearing. Please give us peace. Thank you.
Please give us peace. As if the federal court in a criminal proceeding could issue such a remedy! But such is the power it has exercised over the lives of people in Puerto Rico, and particularly Vieques, that it seemed a not unreasonable demand.
The prosecutor was ready with a reply: what I see is a sense of entitlement…that one can…basically waltz in here, having violated the law, and express shock and outrage that one might have to receive consequences for one’s actions.
A Celebrity Trial
I can’t believe this is a United States federal court, said Rep. John Conyers (then chairman of the House Judiciary Committee) after observing the trial of a group of protesters that included Robert Kennedy, Jr. and union leader Dennis Rivera before the chief judge of the district of Puerto Rico. The judge was on his best behavior that day, having reserved most of the seats in the courtroom for the press and members of the Congressional Black Caucus who arrived to observe the trial. Kennedy was represented by Mario Cuomo, and former U.S. Attorney Benito Romano.
On trial with Kennedy and Rivera, was Myrta Sanes, the sister of David Sanes. Accompanying her on the tiny spit of land where the military police arrested them was former Puerto Rican secretary of state for the pro-statehood New Progressive Party and then-member of the Puerto Rican Senate, Norma Burgos. Burgos had presided over the Special Commission on Vieques named immediately after Sanes’ death to investigate the impact of the navy exercises on Vieques and recommend official policy for the government of Puerto Rico. Its first and principle recommendation, adopted as policy, is best summarized, Not one more bullet, not one more bomb. She told the judge she was on an official senatorial mission when arrested. He didn’t buy it.
What Burgos learned as she presided over this commission ultimately led her to serve sixty days in jail with valor and grace, and, a year later, to vow to return if necessary.
Arrested with Sanes and Burgos were the two Viequenses responsible for guaranteeing their safety and security during their sixty-hour odyssey in the contaminated wilderness during the bombing exercises. Rafi Ayala, fifty-something, is one of Vieques’ most experienced commercial fishermen. He looks the part, and carried his workingman’s dignity with him into the chill marble halls of the federal court. He has been diagnosed with vibroacustic disease, a heart abnormality caused by the shock waves from the bombings transmitted through the water. A study conducted by a group of cardiologists revealed that a much higher proportion of the fishermen tested in Vieques showed symptoms of this condition than in Ponce, Puerto Rico’s second largest city, on the Caribbean coast. The women’s second guardian angel was a young Viequense whose three-year-old daughter suffered from asthma, skin disorders, and unexplained precancerous growths since birth. But has she been diagnosed with cancer? the judge wanted to know.
The Justification Defense: Irrelevant….Move On.’
The trial of Burgos, Kennedy, the sister of a Viequense killed by the navy, a fisherman, and a parent of an afflicted child was an important test of the determination of the district court to refuse to address the defense known as justification, necessity, or choice of evils. In essence, the defense exonerates a person whose acts, while literally in violation of the law, are justified by the necessity of choosing between two imminent evils, and who has no lawful means of avoiding the greater.
Judges are fond of pointing out that defendants have other lawful alternatives for bringing about change, for example, through the courts, the legislative process, petitions, and demonstrations. What the courts cannot bring themselves to see is that their major premise, that Puerto Rico is part of a democratic political system, is contrary to fact. Puerto Ricans, with no legislators in Washington, and no say in who gets to be commander in chief of the nation that sets their foreign policy, can hardly be faulted for not confining themselves to writing letters and knocking on the doors of congressmen, 90 percent of whom do not even speak their language. Here the proof of having exhausted legal alternatives was particularly strong. On the witness stand, Burgos detailed her testimony before Congress as the designated representative of the government of Puerto Rico, and her letters to the secretary of the navy in her capacity as secretary of state and president of the Governor’s Special Commission on Vieques. She testified about the commission’s conclusions and recommendations, which led to Puerto Rico’s official policy of not one more bullet, not one more bomb.
When asked to describe the conclusions of the commission over which she had presided, Burgos replied, One of the conclusions is that more than 9000 American citizens who reside in the Island Municipality of Vieques are being deprived of their life, liberty and the enjoyment of their property. At which point, the navy prosecutor (a judge advocate general with the rank of lieutenant commander) objected, and the court ruled, Irrelevant….Move on.
You cannot violate the law for the sake of your own belief or to advance a cause, warned the judge in sentencing Senator Burgos to forty days in jail. When she asked him when he would judge the navy for its gross violation of the law, she was sentenced to twenty additional days for becoming defiant. Marshal, please take over, the judge ordered.
Robert Kennedy, Jr. I thought the law could fix this.’
Kennedy’s defense fared no better. He sought to show that his incursion was justified as the only means available to prevent further damage to the environment and human health. Eight months earlier, as attorney for the Waterkeeper Alliance and other environmental organizations, Kennedy had filed a civil suit asking for an emergency order prohibiting navy exercises. The exercises, he argued, were causing irreparable injury to the health and safety of the people of Vieques, and were in violation of a number of federal environmental laws.
The same judge about to convict him had, he suggested, failed to rule on his emergency motion to enjoin the bombing for an unreasonably long time. Before being sentenced, Kennedy told him what made him cross the line from environmental lawyer to conscientious lawbreaker. He loved the United States Navy and the law, he said. But he could not accept what the navy had done and was doing in Vieques.
He found Vieques in agony. Along with the highest rates of cancer, infant mortality, and overall mortality in all of Puerto Rico’s seventy-eight municipalities, its residents are dangerously contaminated with arsenic, cyanide, lead, mercury, antimony, uranium, and other toxins associated with the detonation of ordnance. These substances leach into the groundwater, and are carried by the prevailing easterly winds from the bombing range to the homes and schools, the seas where the fish are caught, the fruit trees, and the soil where tubers are grown.
But the worst devastation Kennedy saw in Vieques was the alienation and demoralization of a people whose rights were not respected. In Vieques, his talk of adherence to democracy and a strong system of justice was received with the skepticism of those who have lived in an abandoned corner of a colony all their lives. Their desperation, and his loss of confidence in the ability of the legal system to stop clear violations of environmental laws, carried the day. It was not until after two additional rounds of bombing over a period of eight months, during which his request for emergency relief languished on the desk of the stern judge before whom he now stood accused, that he decided to break the law. He told the court, Under these circumstances, I felt for my conscience that I had an obligation to these people, who I have promised the system is going to work for, to do something that would at least share part of their suffering.
He got thirty days in jail, as did Rivera and the two men from Vieques. Sanes was given six months probation.
As the numbers of protesters swelled—the Chief Judge cited 711 cases at the time of the Burgos-Sanes-Kennedy-Rivera trial—so did the sentences. Sixty days was no longer shocking. Four and six month sentences were meted out. Alberto de Jesús, known as Tito Kayak for his derring-do with a one-person vessel (who at one point inscribed Navy Out! Vieques or Death! on the side of a navy destroyer docked in San Juan for a good will visit), was given a year in jail (two consecutive maximum sentences) and exiled to Manhattan’s Metropolitan Correctional Center. He had been sent there for sentencing for stepping on Lady Liberty’s crown without first getting the permission of the National Park Service. He left his calling cards: a flag of Vieques, a flag of Puerto Rico, and a banner reading Navy out of Vieques. For that offense, the federal magistrate in New York sentenced him to time served and a fine collected from supporters in the courtroom.
The Senator’s Cellmate, Nationalist Heroine, Dona Lolita Lebrón
One of Senator Burgos’ cellmates during her sixty days in jail was Puerto Rican Nationalist Party heroine, dona Lolita Lebrón. In 1954, Lebrón led a Nationalist Party action to protest the imposition of Puerto Rico’s current legal status. From the visitors’ gallery of the U.S. Congress, she unfurled a Puerto Rican flag and cried Viva Puerto Rico! while firing shots at the chandelier. Five congressmen were wounded. She spent twenty-five years in jail, and was released as the result of an intense campaign for amnesty for the jailed Nationalists.
Now in her eighties, Lolita Lebrón has lost none of her incandescence. On June 1, 2000, she walked all night through pathless brambles across Vieques’ tiny mountain range, to participate in a religious ceremony. About thirty protesters, mostly women of Vieques, gathered at dawn on the beach where Puerto Rico’s first ecumenical chapel had stood until the navy tore it down when it took the range back from protesters on May 4, 2000. They were dressed in black and wore white crosses with the names of women from Vieques who had died of cancer, and consecrated the land in the name of their friends, in order to stop the cycle of death.
Released on her own recognizance, Lolita Lebrón gave precise instructions to her lawyer: the only thing she was authorized to do was challenge the jurisdiction of the United States District Court in Puerto Rico. The theory was first developed by the brilliant Harvard-educated lawyer and U.S. Army-trained father of Puerto Rican nationalism, don Pedro Albizu Campos. Albizu was the president of the Nationalist Party at the time of the attack on Congress, and Lebrón’s political, and perhaps also spiritual leader.
Impressed by the nationalism of Eamon de Valera and Mahatma Ghandi, Albizu Campos challenged his countrymen to throw off the yoke of submission and fight for their rights as a free and sovereign people. The legal theory he developed anticipated international law by almost half a century. As elaborated by Lebrón in her motion to dismiss the charges in federal court in 2001, it goes like this:
Presente! The Spirit of Pedro Albizu Campos
The fruit of an act of aggression—military invasion of a country not at war with the United States—the United States’ claim to sovereignty over Puerto Rico, and thus jurisdiction over Lebrón, was null and void. Albizu developed and tested the legal challenge to United States jurisdiction in the case of Luis F. Velázquez in 1936, decades before the United Nations would approve Resolution 1514 (XV) on the Right of Colonial Peoples and Nations to Self-Determination. Since then, that right, once a bold assertion erected over a solid theoretical foundation in the little-visited annals of international law, has become what is known as a peremptory norm of international law. A peremptory norm is universally binding, not on the basis of the number of nations that have signed a treaty, but because it has become so universally respected as to represent a consensus among all civilized nations about a fundamental proposition. All but a handful of the colonies that existed at the time Resolution 1514 was declared are now member states of the United Nations.
Lebrón’s motion was not expected to have any impact whatsoever on the district court, but her challenge was more radical than just filing the motion. Given her position that the court, as the representative of an invader and international outlaw, had no jurisdiction over her, she did not deign to appear for trial. Somewhat to her disappointment, the judge assigned to her trial declared that sending U.S. Marshals to arrest an eighty-year-old icon was the last thing he would do. He then began to describe a death-bed conversation with his father about Lolita Lebrón, a woman the father had met, and admired. She was sentenced to the time she had been detained prior to being released on her recognizance.
Undaunted, she returned to protest again. This time she was not released until she had served sixty days, during which she shared a tube of contraband lipstick with Senator Burgos.
An Overwhelming National Consensus
The arrests of the men and women of Vieques, many of whom were the sons and daughters of people whose lands had been expropriated by the navy, gave the lie to the navy’s assertions that the people of Vieques had no problem with the navy, and that the protests were the work of outsiders, and left-wing (i.e., pro-independence) organizations.
Not wanting to create a precedent for allowing communities to reject U.S. military presence, Congress postponed, and then cancelled the promised referendum on whether the navy should leave Vieques. Puerto Rico’s government held its own referendum, in which 68 percent of the voters said no, with voter participation close to 80 percent. Before the referendum, the navy had already handed out most of the $40 million in community/economic development funds allocated by Congress to—well, there is no other way to say it—buy the vote in Vieques. The navy promised that an additional $50 million would follow a yes vote.
The navy set up a community outreach office on this island where the median income is about $6,000 per year per person, and the mayor estimates the unemployment rate at 50 percent. It invited people to submit proposals for small business grants of up to $25,000. Most of those who were told their proposals qualified, but were rejected anyway, were known to want the navy out. The navy also began paying Vieques fishermen who signed up for compensation $100 per day for every day they were banned from the waters by the navy. Still, it could not muster a third of the vote.
The struggle for the demilitarization, decontamination, return of the lands, and sustainable development of Vieques is second only to hurricanes as the least sectarian phenomenon Puerto Rico has known, at least since the 1898 invasion. Not only has it united the people of Vieques and the people of the large island of Puerto Rico—separated by a ninety-minute-long ferry ride—but it has also ignored the legendary partisan political differences revolving around status options.
The Traditional Divisions: Independence, Statehood, or Something-In-Between
The three political parties each represent a status alternative: independence, statehood, and the present free associated state or unincorporated territory relationship. The not one more bullet policy was formulated by a pro-statehood governor, Pedro Rosselló.
Sila Calderón, the current pro-free associated state governor was elected largely because of Rosselló’s last-minute agreement to allow the navy to resume bombing, and her promise to get the navy out of Vieques within ninety days of taking office. Her inability to do so is emblematic of the distance between the rhetoric and reality of any theoretical autonomy allowed under the free associated state.
The leaders of the two parties that alternate governing the colony were both forced to assume their unusually strong positions by Puerto Rican Independence Party president, Rubén Berríos Martínez. He set up a civil disobedience camp within the navy’s high impact zone and lived there for over a year until arrested by U.S. Marshals when the United States ejected two hundred protesters and took back the bombing range for the navy. He returned twice more, and served two sentences, one of three months in jail.
Vieques is a case of parties and politicians following the lead of the people. David Sanes depended on the navy for his livelihood, but when he was killed—and three others terribly injured—by an errant bomb, Vieques erupted. Parents were not willing to risk losing another child for a paycheck. And Viequenses were tired of being told they must sacrifice their land, their safety, their health, and their tranquility to the national security of the United States.
Walking Towards an Uncertain Future in His Father’s Shoes
With the support of Franciscans International/Dominicans for Justice and Peace, I accompanied Carlos Ventura Meléndez the president of the Fishermen’s Association of the South of Vieques to the meeting of the United Nations Human Rights Commission in Geneva, Switzerland, last March. He was a remarkably efficient and indefatigable diplomat, managing to have personal conversations with the representative of virtually every Latin and Central American nation attending the session. The only diplomat who refused to speak to us—on the grounds of lack of time—was the U.S. diplomat in attendance.
The most delicate appointment came on the last day, when we met with the Vatican nuncio for human rights. Carlos did most of the talking. At the end of the interview, the nuncio turned and, assuming the role of parish priest, asked, Carlos, what do you see for your future? Carlos explained,
I live in a barrio called Luján, but they have changed its name. Many people now called it the barrio of death, or the barrio of cancer. We seem to go from one funeral to another. Someone gets diagnosed with cancer one day, and the next thing you know, he’s dead. So many of my classmates have buried their children….Most parents, when they get to my age, in their forties, start thinking what their children’s future will be….Will they be doctors, or teachers, or fishermen, or whatever. But we donask that question. We just wonder whether our children will have a future.
The shoes Carlos was wearing that day had been his father’s. He promised his father, before he died, that he would walk in those shoes from one end of Vieques to the other, free of barbed wire fences and armed navy guards. Carlos and four members of his family have all paid their dues in jail for ignoring those fences in order to claim their right to live on lands used, as he says, to teach killing, to sow death. Geneva was just one more step toward fulfilling his promise to his father.