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Bancoult v. McNamara (D.D.C., No. 01-CV-2629, filed Dec. 20 2001)

See also, Alien Tort Claims Act, Other defenses and issues

Federal Tort Claims Act


by Charles Judson Harwood Jr.


Foreigners (‘aliens’), both resident and non-resident, can sue the United States under the Federal Tort Claims Act, just like Americans can.

Smith v. United States, 507 U.S. 197 (March 8 1993) (noting from the legislative history that a provision to bar alien-suits was stricken from the Bill).

But, like Americans, aliens too face the same daunting array of 13 exceptions, 4 of which are potentially pertinent to the Chagos islanders:

“Sec. 2680. — Exceptions

The provisions of this chapter and section 1346(b) of this title shall not apply to:–

(a)  Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

“(h)  Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, ‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

“(j)  Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(k)  Any claim arising in a foreign country.”

Federal Tort Claims Act, 28 U.S.C. § 2680, excerpts, bold-face, highlighting, and links added.

There are miscellaneous nickel-and-dime provisions allowing voluntary payments by various wrongdoing U.S. agencies, such as a $100,000 maximum for “meritorious claims” incident to foreign non-combat activities by the U.S. military. And, in a particular case, this provision can accomplish its stated objective, if honestly administered: “To promote and to maintain friendly relations through the prompt settlement of meritorious claims”. Foreign Claims Act 10 U.S.C. § 2734.

But not for the generality of victims, and particularly not for intentional torts. Like the police investigating themselves, this involves a finding by U.S. military officers of wrongdoing by U.S. military officers, thus staining their records; some wrongdoing is done on orders through the chain-of-command (such as the ethnic-cleansing of the Chagos population), thus precluding a finding of wrongdoing, by subordinates or by those in a collateral chain-of-command; and the U.S. Military, in any event, cannot be compelled in Court to pay under this provision, exactly as with the Nazi Military.

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By these exceptions, Congress carefully deprives U.S. Courts of jurisdiction to hear most complaints by victims seeking damages for the foreign wrongdoings by the United States.

This is the identical technique adopted by the Nazi Government, and prevents public scrutiny and careful judicial inquiry including, especially, the power of the Court to compel discovery of the facts, and to do so under oath. This would confront U.S. Government officials, who normally lie about such facts, with the prospect of a prison term for perjury. Such a lawsuit, and its resulting judicial inquiry, would build a credible, authoritative, permanent, historical record of the facts which the media, the public, the Congress, Government officials, and future generations could not dispute and could not spin.

This is the last thing U.S. Government officials want, including Congress — not least because most such U.S. torts are also crimes by large numbers of individual U.S. Government officials.

And so, by their exceptions, which eliminate the threat of this judicial inquiry, Congress — as with the Nazi Government — incites, aids and abets, and facilitates the violent crimes and other torts by the U.S. President, Attorney-General, military, CIA, and other U.S. officers, contractors, operatives, and partners — conducted, usually behind a veil of secrecy, abroad.

But not all complaints are blocked.

________________

What about the last exception, the most obvious one?:

“(k)  Any claim arising in a foreign country”. § 2680(k).

Can the United States escape justice because Congress expressly licenses the United States to commit crimes and torts “in a foreign country”?– by refusing U.S. Courts jurisdiction to hear complaints for damages by the victims.

Thanks to U.S. Judges of the past, this exception is not so obvious as it appears, due to their ‘headquarters’ interpretation of § 2680(k). Their judicial interpretation of this legislative exception plainly applies to the U.S. tort against the Chagos islanders and authorizes their complaint under the Federal Tort Claims Act (if no other exception applies):

“An FTCA claim is decided under the law of the place in which the negligent act or omission occurred and not the place in which the act or omission had its operative effect. See Richards v. United States, 369 U.S. 1 (1962). ... These claims are characterized as ‘headquarters claims’.

In In re “Agent Orange” Product Liability Litigation, 580 F.Supp. 1242, 1255 (E.D.N.Y. 1984), appeal dismissed, 745 F.2d 161 (2d Cir. 1984), the court held that although the injuries to the claimants resulting from the exposure to Agent Orange occurred in Vietnam, the initial decision to use Agent Orange, the decision to continue using it, and the decision relating to the specifications for the herbicide, were all made in the United States. Therefore, the negligent act or omission occurred in the United States and liability was properly imposed upon the government. Thus,

‘a claim is not barred by section 2680(k) where the tortious conduct occurs in the United States, but the injury is sustained in a foreign country.’

Donahue v. United States Dep’t of Justice, 751 F.Supp. 45, at 48 (S.D.N.Y. 1990).”

Couzado v. United States {30kb.txt, 36kb.pdf}, 105 F.3d 1389 (11th Cir., No. 95-4639, Feb. 20 1997, panel: Joel Fredrick Dubina, Joseph Woodrow Hatchett, Maurice Blanchard Cohill Jr.) (a complaint under the Federal Tort Claims Act against the United States alleging a negligent DEA sting in Guatemala is not exempted by the ‘foreign country’ exception of 28 U.S.C. § 2680(k)), bold-face, links, and text {in braces} added.

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And the next-to-last exception?:

“(j)  Any claim arising out of the combatant activities of the military ... during time of war”. § 2680(j).

Can the United States escape justice by claiming it was at war with Vietnam in 1971 and therefore it could deport/exile the Chagos islanders if it wished to do so?– free of any inquiry by a U.S. Court on a complaint for damages?

This is a big-money item, because the U.S. Military routinely violates the targeting laws-of-war thereby rendering the U.S. Government liable (under those laws-of-war treaties) to pay damages for the innocent victims they thereby kill and maim and the civilian property they thereby destroy. Yet, by this provision, Congress refuses to allow the U.S. Government to be held accountable for damages in U.S. Courts for the U.S. Military’s unlawful violence — A pity because this engenders widespread and justified hatred of the United States; a resolute urge for revenge; and no incentive for the U.S. Military to abandon its unlawful targeting doctrines.

In 1971, when the last of the Chagos islanders were kidnapped and deported from their homeland island of Diego Garcia, the U.S. was indeed at war, with Vietnam. But not with the Chagos Islands. Likewise, the U.K. was not at civil war in its own territory. And though the U.K. Government, incited by the U.S. military, were in action against their Queen’s Subjects, the Chagos islanders were not combatants; they did not assert armed resistance; and no shots were fired. Thus, this U.K. kidnapping did not constitute “combatant activities” and certainly not by U.S. military forces. This exception therefore does not block the Chagos islanders’ complaint.

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And the ‘intentional tort exception’?:

“(h)  Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights”. § 2680(h).

Can the United States escape justice by claiming that the deportation/exile of the Chagos islanders (which it incited the U.K. Government to do) amounts to no more than mere “false imprisonment, false arrest, ... misrepresentation, deceit”? And therefore no U.S. Court can award damages, because Congress expressly licenses the United States to commit such intentional torts?

Incredibly, if U.S. Army soldiers, acting on orders and thinking you’re a terrorist, barge into your home, rifle-butt your spouse and children, beat you into submission, drag you off to a secret detention center, threaten to kill you, tell you your wife and children were killed in the process, tell your boss and your local newspaper that you’re a terrorist, money-laundering drug-dealer and won’t be coming back to work because you fled the country as a fugitive from justice, hold you incommunicado in a dungeon with no windows or lights, beat you occasionally for the simple pleasure of it, and then leave you by the side of the road in Uzbekistan 6 months later, with no passport and no pocket money (‘intentional’ torts) — you can’t sue the U.S. Government for damages. But, you can, if you discover that some Army commander knew of this secret terrorist intelligence unit and took no action to stop them (a ‘negligent’ tort).

This, because when Congress first decided to partially subject the U.S. Government to the rule-of-law for its torts, and enacted the Federal Tort Claims Act (Aug. 2 1946), they were nervous about the consequences, about how much money it would cost, and they decided to take it “one step at a time”. They haven’t taken many subsequent steps.

To avoid this exception, litigants work hard to prove that the intentional torts of U.S. Government officials and employees are also negligent torts by their co-workers who should have, but didn’t, intervene to prevent them.

See Sheridan v. United States, 487 U.S. 392 (June 24 1988) (a complaint under the Federal Tort Claims Act against the U.S. Government alleging that U.S. employees negligently enabled an obviously intoxicated off-duty serviceman to fire several rifle shots into an automobile on a public street near the Bethesda Naval Hospital where he worked, causing physical injury and damage to the car, is not blocked by the ‘intentional tort’ exception of 28 U.S.C. § 2680(h)).

But here, we’re dealing with a pre-meditated state-sponsored prima facie international criminal conspiracy against the Chagos islanders, and you can’t get more intentional than that.

Yet, interestingly, the particular crime/tort against the Chagos islanders (deportation/exile) is not one of the intentional acts enumerated in the exception. So too, Congress did not list other serious intentional torts either, such as kidnapping, arson, rape, torture, murder (‘wrongful death’), and such by U.S. Government officials and operatives, acting on orders, even though such serious criminal activities are within the scope of employment of many U.S. officials because they are foreseeable, as these officials often commit, conspire, incite, aid and abet, and facilitate such crimes (eg: President, CIA, Military).

And that’s because Congress in 1946, at the end of World War Two, doubtless did not intend to except state-sponsored international crime by the United States. I don’t suppose they dared mention such crimes during the legislative history of the Federal Tort Claims Act, and most Members of Congress at the time probably never even thought about U.S. state-sponsored crimes.

Instead, Congress was presumably thinking about the unauthorized behavior of FBI and other U.S. Government officials, acting within the scope of their employment, under color of law, yet unlawfully, out of zeal or malice, as law-enforcement officers sometimes do.

Later, Congress, “taking one step at a time”, took another step as to law-enforcement officers (but not the CIA or U.S. Military) and revoked the exemption of the U.S. Government for some of their intentional torts, but not all of those listed (the proviso in § 2680(h), effective March 16 1974).

This 1974 proviso (imposing damage liability on the United States for certain intentional torts) doesn’t apply to the Chagos islanders: Because they were deported/exiled previously; Because the 1974 proviso doesn’t apply to torts by the particular U.S. officials responsible (they weren’t law-enforcement officers); and, as the U.S. Government lawyers might argue, Because the 1974 proviso doesn’t apply to misrepresentation and deceit, which are elements of the tort against the Chagos islanders (more of which, presently).

But the crime/tort against the Chagos islanders (deportation/exile) is a different kettle of fish. It was not the unauthorized actions of U.S. officials gone astray (the apparent topic of the 1946 exception for intentional torts) but, instead, the purposeful, willful, deliberate, intentional, and authorized action of U.S. Government officials adopting and implementing an official unlawful U.S. Government action. It’s a crime by the master, not the servant. And, in any event, it’s well beyond the scope of the lesser intentional torts enumerated in this exception. § 2680(h).

The U.S. Government lawyers might argue that the deportation/exile of the Chagos islanders was less like “false imprisonment, false arrest” and more like “misrepresentation, deceit”, as the islanders (presumably) did as they were told by the U.K. officials and got on the boat voluntarily, albeit reluctantly, accepting what the U.K. officials told them, viz: that they no longer had a right to continue living in their own homeland. And, perversely, that the U.S. Government is entitled to the benefit of the lies and deceit practiced by the U.K. Government. A ‘benefit’, because Congress specifically licenses the U.S. Government to trick, cheat, and deceive, by denying U.S. Courts jurisdiction to award damages to the victims for their resulting injuries. § 2680(h).

The U.S. Government can’t shelter behind such lies and trickery after Nov. 10 2000, when the U.K. Court’s judgment, exposing the deceit and trickery, became final.

But what about the previous 30 years of misrepresentation and deceit? Can the United States escape justice because its officials are good liars?

The U.S. Judge will have to acknowledge that the tort against the Chagos islanders embodies elements listed in the statutory exception, specifically: “false imprisonment, false arrest”, “misrepresentation, deceit”. Interestingly, this list is conjoined with the conjunction “or” — instead of ‘and’, and instead of ‘and/or’.

Does this mean the United States can escape justice only if it does one intentional tort at a time? And, because the United States did all four torts at the same time, does the U.S. Court have jurisdiction to bring the U.S. Government to justice?

I doubt it, as false arrest and false imprisonment always go hand-in-hand (implying Congress meant ‘and/or’). And, even if there’s no statute of interpretation about this (and there probably is), I imagine plenty of courts have ruled that, in general, ‘or’ means ‘and/or’. Because I’m confident this is the case, I haven’t yet bothered to search for the interpretation law on this question.

The Judge might experience doubt, and thus find the UK officials, or at least the US officials, may have been merely mistaken or negligent, when they claimed the right to deport/exile the Chagos islanders, and may not have been guilty of willful and intentional “misrepresentation, deceit” when they informed the islanders they did not have the right to continue living in their own homeland. The Judge could find support for this view in the various rationalizations and arguments advanced internally by the British civil servants, detailed in the U.K. Court’s judgment, and in the CIA assertion that the islanders were mere resident workers and not an indigenous population, surely an honest belief by this honorable and trustworthy organization and not a willful lie.

While many U.K. officials were clear in their minds that the U.K. action was unlawful, there may have been a few who were uncertain. And these few might have been the deciding minds on which the U.K. act of state was founded. The Judge might then attribute such uncertainity to the United States. The intentional tort exception does not apply to such mere mistakes and mere negligence, and for these torts, the U.S. Court has jurisdiction to award money damages against the United States (if no other exception applies).

The U.S. Government lawyers could defend against this finding of fact, more perversely still, by producing evidence (instead of concealing it, or contesting its disclosure) that the U.S. Government officials knew that the Chagos islanders were indeed an indigenous population, as the U.K. officials admitted they also knew, and that the U.S. Government officials believed that what they were inciting the U.K. Government to do was an international crime/tort; that they did it intentionally and not merely negligently; and that they purposely misrepresented the situation to the islanders and intentionally deceived them; and that precisely because they did it on purpose, and not by accident, Congress denies the U.S. Court jurisdiction to award them damages against the United States.

Quite a spectacle. And excellent entertainment. But it’s a diversion from the issue: Did Congress license the United States to commit serious intentional torts? Or only lesser intentional torts?

Serious torts usually involve lesser torts: Murderers often grab their victims and hold them against their will (‘false imprisonment, false arrest’) before killing them. Rapists often sweet-talk their victims (‘misrepresentation, deceit’) before turning violent. But these lesser torts are in addition to the serious torts. In a suit for damages for murder, juries award separate damages for false imprisonment, assault, and torture in addition to damages for wrongful death, thereby recognizing the suffering of the victim prior to death.

The United States is doubtless immune from a damage-suit for inciting lies to the Chagos islanders. But once its officials also incited their deportation/exile, the United States exceeded the scope of its exception and can no longer claim the benefit of mere ‘misrepresentation, deceit’ and mere ‘false imprisonment, false arrest’. The United States thereupon committed a different species of crime/tort, one greatly more serious, and one Congress did not license the United States to commit free of accountibility for money damages in a U.S. Court.

The U.S. Court is faced with a law which permits it to award money damages against the United States for its torts unless an exception applies. Congress has enacted 13 exceptions (and there’re other issues, discussed below). The United States has the burden of proof to establish that its conduct is sheltered within one of these exceptions.

Congress omitted from its intentional tort exception all serious torts. Congress made no exception for the crime/tort of deportation/exile.

But did Congress intend to except deportation/exile, had it thought of the question?

Imputing to Congress an intent about an issue it never thought of is faulty jurisprudence, unless it’s plain (from what it did do) what Congress would have done. The best, and honest, method in this situation is for the Court to recognize the realilty; find that reality as a legal conclusion; find no exception applies; and then leave it to Congress to enact an exception for the future if its Members have the desire, and the political nerve, to do so.

A U.S. Court has held that Congress did deprive U.S. Courts of jurisdiction to award damages against a foreign nation for the serious crime/tort of torture in a foreign country. But there, the law of Congress was reversed: prohibiting jurisdiction unless an exception applied.

Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir., No. 85-5773, May 22 1992) {122kb.html, 93kb.html, 224kb.pdf}. Congress subsequently amended the Foreign Sovereign Immunity Act to grant jurisdiction to U.S. Courts to award damages against a foreign nation for torture or extra-judicial killings outside the U.S., but only if it’s a “foreign state designated as a state sponsor of terrorism”. 28 U.S.C. §§ 1330, 1602-1611 (amendment adding § 1605(a)(7), April 24 1996). For torts inside the U.S., U.S. Courts always had jurisdiction to award damages against a foreign nation. § 1605(a)(5).

On August 2 1946, Congress enacted a law to subject the United States to damages for its torts excepting, as to intentional torts, only the lesser ones typically committed by law-enforcement officers, usually in the heat of the moment and in the context of uncertain facts and uncertain law. Congress could have made an exception for all intentional torts. But it didn’t. Instead, it enacted the Federal Tort Claims Act omitting serious intentional torts from its intentional torts exception. § 2680(h).

By August 2 1946, every Member of Congress knew that Adolph Hitler had deported/exiled a segment of his own population and the populations of his occupied territories. Some he sent to Eastern Europe. Some he sent from Eastern Europe to Germany so that he could seize their farms for German settlors. Two decades later, United States officials followed in Adolph Hitler’s footsteps. They deported/exiled the Chagos islanders because they wanted the islanders’ homeland, exactly as Adolph Hitler wanted the farmland in Poland.

On August 2 1946, Congress decided to make the United States pay for kidnapping, arson, rape, torture, murder, and such. If Congress decided to not make the United States pay for deportation/exile — a crime/tort of equivalent gravity, which they had just witnessed Adolph Hitler do on a mammoth scale, and prosecuted his officials for in military tribunals — then it’s for the United States Government lawyers to prove it.

I’ve seen no proof of it, and I don’t suppose there is any: I can’t imagine any Member of Congress in 1946 advancing such a notion, or even any official of the U.S. Justice Department. And I don’t imagine anything resembling it was ever discussed during consideration of the Bill except, perhaps, to disclaim any such intention.

The legislative history of this law is spread over 13 years of Congressional hearings and deliberations (1933-1946) and, as far as I can determine, none of it’s on the internet. And while I could go down to my friendly depository library (of U.S. Government Printing Office documents) and spend a couple of months reading all that, I’m not going to bother because I don’t have any burden of proof. Nor to the Chagos islanders. The statute conspicuously omits serious torts from those enumerated in the intentional tort exception. So I’m content for the U.S. Government lawyers do that work. It’s their burden of proof. And if they produce some evidence of contrary Congressional intent, then I’ll go down to my friendly library to discover what they may have omitted to mention.

An exception for a tort is a license to do the tort, because there’re no adverse consequences, only benefits, from the wrongdoing. Such an exception thus constitutes a participation in the tort by Congress, which shelters the wrongdoers from justice, thus inciting, aiding and abetting, and facilitating their tort. The more serious the tort — and especially very serious international crime/torts — the more plain Congress would have to express its exception, before most U.S. Judges would feel constrained to believe it and enforce it.

The Chagos islanders can hope the Judge will consider deportation/exile to be the serious crime/tort it is, and a much more serious tort than Congress ever intended to except when it wrote its list of lesser intentional torts which it licenses the U.S. Government to commit, free of the rule-of-law.

The Judge has several grounds to hold this exception does not apply and to look to the main law itself, and ask himself this question: Does the complaint allege a wrongful act by U.S. Government officials, acting on orders or otherwise within the scope of their office, and did Congress consent for the United States to be sued for it (absent some other exception)?:

“Sec. 1346. — United States as defendant ...

(b)(1)  Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), bold-face and links added.

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And what of the U.S. Government’s big weapon against U.S. Courts — and the basis of the Nazi Government’s immunity from its Courts — the ‘discretionary function exception’ of the executive branch to do, or to refrain from doing, what it pleases?:

“(a)  Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function ...” § 2680(a).

Does the U.S. Government, like the Nazi Government, have ‘discretion’ to commit international crimes? In this case: to incite, conspire, aid and abet, facilitate, and participate directly with an allied nation (the U.K.) in an ‘international crime against humanity’ against the Chagos islanders?

The decision to build a military base on Diego Garcia was discretionary; a matter between the President and Congress (who had to approve the money for it); and no business of the U.S. Courts. But once the decision to do it was made, the doing of it in an unlawful manner was not discretionary. Diego Garcia is like a lighthouse on the Mississippi River {350 U.S. 61, 69}:

“The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.”

Indian Towing Co. v. United States, 350 U.S. 61, 69 (Nov. 21 1955) (a complaint under the Federal Tort Claims Act against the U.S. Government alleging loss of a tow-boat cargo swamped after grounding in the Mississippi River estuary on a lighthouse island, due to negligence by the Coast Guard in monitoring and maintaining that light and issuing public notices, is not blocked by the ‘discretionary function’ exception of 28 U.S.C. § 2680(a)).

The ‘discretionary function’ exception protects lawful political discretion, not criminal enterprises {488 F.Supp. 655, 671}:

“The Republic of Chile, while vigorously contending that it was in no way involved in the events that resulted in the two deaths, further asserts that, even if it were, the Court has no subject matter jurisdiction in that it is entitled to immunity under the Act, which does not cover political assassinations because of their public, governmental character.”.... {488 F.Supp. 655, 673}

“Whatever policy options may exist for a foreign country, it has no ‘discretion’ to perpetrate conduct designed to result in the assassination of an individual or individuals, action that is clearly contrary to the precepts of humanity as recognized in both national and international law.”

Letelier v. Republic of Chile, 488 F.Supp. 665, 671, 673 (D.D.C. March 11 1980, Judge: Joyce Hens Green) (complaint for damages against Chile for its murder of Orlando Letelier and Ronni Moffit by car-bomb in Washington DC on Sept. 21 1976 is not blocked by the ‘discretionary function’ exception in the Foreign Sovereign Immunity Act, 28 U.S.C. § 1605(a)(5)(A)), bold-face, text {in braces} added. Accord Liu v. Republic of China (65 kb), 892 F.2d 1419 (9th Cir., No. 87-2976, Dec. 29 1989, panel: Robert Boochever, Procter Ralph Hug Jr., Thomas Tang) (complaint for damages against China for the wrongful death of Henry Liu in Daly City California, shot and killed Oct. 15 1984 by two gunmen on orders of Admiral Wong Hsi-ling (Wong), Director of the Defense Intelligence Bureau (DIB) of the Republic of China (ROC), is not blocked by the ‘discretionary function’ exception in the Foreign Sovereign Immunity Act).

And the reverse? Did U.S. President Richard Nixon (Jan. 20 1969–1974 Aug. 8) have discretion to murder René Schneider in Chile (Oct. 22 1970)? And incite the murder of its President, Salvador Allende (Sept. 13 1973)? And the violent overthrow of its democratically elected government and installation of the criminal military dictatorship of Augusto Pinochet (Sept. 13 1973)? And the deportation/exile of the Chagos islanders (1969-1973)?

As far as I know, no U.S. Court has considered this issue. But — apart, perhaps, from Antonin Scalia and Ruth Bader Ginsburg — I don’t suppose there’re many U.S. Judges who would stand aside, and thereby expressly transform the U.S. legal system into an even more exact copy of the Nazi legal system than it already is {486 U.S. 531, 536}:

“The basis for the discretionary function exception was Congress’ desire to “prevent judicial {486 U.S. 531, 537} ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. Varig Airlines, supra {467 U.S. 797 (1984)}, at 814. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. See Dalehite v. United States, supra {346 U.S. 15 (1953)}, at 36 ( “Where there is room for policy judgment and decision there is discretion” ). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment. ... {486 U.S. 531, 539} The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.”

Berkovitz v. United States, 486 U.S. 531, 536-537, 539 (June 13 1988) (a complaint under the Federal Tort Claims Act against the U.S. Government alleging two U.S. Agencies violated their own regulations in approving a defective polio vaccine — the National Institutes of Health’s Division of Biologic Standards, and the Bureau of Biologics of the Food and Drug Administration — is not barred by the ‘discretionary function’ exception of 28 U.S.C. § 2680(a)), bold-face, links, and text {in braces} added.

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The ‘law of the place’?:

“under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”. 28 U.S.C. § 1346(b)(1), bold-face added.

Can the United States escape justice by claiming there is no law in the District of Columbia, or Virginia, which prohibits deportation/exile? And therefore it violated no ‘law of the place’ in the place where the United States acted (when it incited the U.K. Government to commit this tort against the Chagos islanders)?

The U.S. Supreme Court says Congress means U.S. State law, not U.S. federal law. And that the United States can willfully violate the Constitutional rights of its citizens and residents, and the victims cannot sue the United States for damages {510 U.S. 471, 478}:

“Indeed, we have consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the State — the source of substantive liability under the FTCA. {Citations omitted} By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right. To use the terminology of Richards {Richards v. United States, 369 U.S. 1, 6-7, 11 (1962)}, the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims.”

FDIC v. Meyer, 510 U.S. 471, 478 (Feb. 23 1994), via FindLaw, but conformed to the Court’s bound-volume (4,426 kb pdf), which contains section-signs and page-numbers omitted by FindLaw, bold-face, links, and text {in braces} added.

And, specifically, the particular State enclosing the particular federal enclave where the tort was committed. For this purpose, the District of Columbia is a ‘State’, as it has its own laws separate from U.S. federal law. There are special statutory choice-of-law rules for national parks, federal lands, offshore drilling rigs, and such, and these special rules all likewise reference the enclosing State(s) or the nearest State. The idea is that State tort law is more fully developed than U.S. federal law and also that the U.S. Government should obey the local laws where it operates, insofar as torts are concerned (except for the exceptions, of course).

The tort by the United States against the Chagos islanders was committed mainly in Washington DC, where the decision was made (White House?), and the action taken (State Department?), to incite the U.K. government to commit the tort and to aid and abet it with the $14 million write-off of the U.K. debt for 5% of the Research & Development costs of the Polaris missile. And in Virginia as well, at the Pentagon, where U.S. military officials participated in the incitement and in the aiding and abetting.

It will surely be the case that neither the District of Columbia nor Virginia has ever passed any law prohibiting deportation/exile.

But each makes a crime of kidnapping. Following their abduction, the Chagos islanders were released, into a slum in Mauritius, and thereby regained their freedom, but not their livelihood and not their liberty to return to their homeland, because the U.S./U.K. forces prevent them by force from doing so. Is this a continuing deprivation of their ‘liberty’, within the meaning of Virginia’s definition? Do they remain ‘detained’, within the meaning of the District of Columbia’s definition? I presume there’s a tort which goes along with this crime, but this I’ve yet to look into.

Certainly deportation/exile is a better-suited description of what U.S./U.K. officials did to the Chagos islanders. The law against deportation/exile is an international law. Such an international law is part of U.S. federal law, if the Court finds it to be a settled customary international law and if the U.S. Government lawyers can’t discover some law Congress subsequently passed which contradicts it.

But, is it also part of U.S. State law? I thought the answer was yes, but now I’m having second thoughts, as the supremacy clause of the U.S. Constitution doesn’t make U.S. law part of U.S. State law, it merely invalidates conflicting State law.

But, Virginia and the District of Columbia both recognize common law crimes. I supposed this includes international crimes as they develop which (as I supposed) automatically become part of their law without enactment by their legislatures. But now I’m wondering whether the common law crimes they recognize are only those from long ago.

Can Virginia or the District of Columbia prosecute someone in their state courts for such international crimes as piracy, torture, slavery, war-crimes, crimes against humanity, deportation/exile?– even though their state legislatures haven’t specifically enacted a criminal statute defining these crimes? Virginia officials indicted, prosecuted, tried, and convicted, in Virginia’s Court, Blackbeard’s crew for piracy (Jan. c.9 1719) and executed them (Jan. 28 1719), and other pirates as well, in the days before the USA.

For example, could they prosecute Richard Helms (CIA Director) for his murder of René Schneider in Chile (Oct. 22 1970), an international common-law crime against humanity (state-sponsored murder) (Helms died Oct. 24 2002, age 89); or Stanley Sporkin (then CIA General Counsel, now a U.S. District Judge) for his complicity in the state-sponsored murders by the CIA, and war-crimes, in Central America in the 1980s?

They can prosecute them already under their State complicity laws, because foreign murder is covered by their complicity laws, whether or not state-spoonsored. And if they did, they would thereby abate much hatred against the United States, and do more to protect the United States from terrorism than all the billions Congress is now throwing down a bottomless pit, because Congress won’t face the issue which motivates the terrorists: violent crimes by the U.S. Government and its refusal to admit, apologize, and pay damages, or else litigate.

But what of an international crime which is not enacted by their legislatures, like deportation/exile?

More to the present point are their tort laws: Can a victim sue those same people in Virginia and District of Columbia state courts for money-damages for their participation in such international crime/torts? I expect so, but I don’t know so.

If the common law of the District of Columbia and of Virginia includes these international crime/torts, then their ‘law of the place’ is identical to the international law itself. And so, if the U.S. violated international law, by inciting and aiding and abetting deportation/exile, then it also violated District of Columbia law and Virginia law as well, and therefore the U.S. Court has jurisdiction to award damages to the victims (28 U.S.C. § 1346(b)(1)) if no exception applies (§ 2680).

Is there more to “kidnapping” than mere “false arrest, false imprisonment”?

Intentional tort: Recognized in Virginia and also New York, where U.K. officials lied to the United Nations, with the knowledge and approval of U.S. officials, as an intergral part of their conspiracy. For a discussion of New York’s intentional tort law see Socialist Workers Party v. Attorney General of U.S., 642 F.Supp. 1357, 1418-1419 (S.D.N.Y. August 25 1986, Judge: Thomas Poole Griesa) (damage awards against the U.S. Government for 45 years of: burglaries; thefts; unlawful opening and theft-copies of first class mail; surreptitious “poison-pen” criminal libel to provoke termination of employment; unlawful wiretaps; unlawful use of informants; unlawful acquisition, retention, and use of more than 1-million pages of stolen papers).

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And what of the ‘private person’ rule?:

“under circumstances where the United States, if a private person, would be liable to the claimant”. 28 U.S.C. § 1346(b)(1), bold-face added.

Can the United States escape justice by claiming that only a nation-state can commit the crime/tort of deportation/exile, and not a ‘private person’? And will the U.S. Government lawyers in the Chagos case repudiate the contrary position they asserted in the Kadic case? {70 F.3d 272, 239}:

“We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.... {70 F.3d 272, 240}

The Executive Branch has emphatically restated in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law. See Statement of Interest of the United States at 5-13.”

Kadic v. Karadzic {72kb.html/txt, 100 kb rtf}, 70 F.3d 232, 239-240 (2d Cir., No. 94-9035, Oct. 15 1995, panel: Jon Ormond Newman, Wilfred Feinberg, John Mercer Walker Jr.), rehearing denied (7 kb) 74 F.3rd 377 (2d Cir. Jan. 4 1996); also via WestLaw and 1995 U.S.App. Lexis 28826 (201 kb), text {in braces} added.

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And the ‘scope of his office or employment’?:

“caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment”. 28 U.S.C. § 1346(b)(1), bold-face added.

Can the United States escape justice by claiming that President Richard Nixon — when he murdered René Schneider, or when he ordered the Chagos islanders deported/exiled from their homeland — was not acting within the scope of his office, and therefore the U.S. Court has no jurisdiction to award damages against United States to the victims?

Coming-up, but the answer is probably not: Violent crimes and other intentional torts by the U.S. President, the U.S. Attorney-General, the U.S. Military, the CIA, the FBI, and other U.S. agents, operatives, and partners are well-known, tolerated, and hence foreseeable activities by these U.S. officials and hence within the scope of their offices. Thus, Nixon acted within the scope of his office for purposes of the Federal Tort Claims Act, when he committed these crimes. This, even under the restrictive 1957 Restatement test which applies to the District of Columbia conspirators, and the more so, under the more modern Virginia law (as I recollect it to be), as to their CIA and Military accomplices:

See Haddon v. United States {63kb.html/txt}, 68 F.3d 1420 (D.C. Cir., No. 94-5250, Nov. 3 1995, panel: Harry Thomas Edwards, David Bryan Sentelle, David S. Tatel) (White House electrician Jeffrey A. Freeburger exceeded the scope of his employment when he “approached Sean T. Haddon, an assistant chef at the White House, and threatened to follow him to his car after work and ‘beat the shit out of him’ unless the chef ” did what Freeburger wanted), reviewing court decisions applying the District of Columbia’s law on ‘scope of employment’.

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And what of the qualified and absolute ‘immunity’ of U.S. officials?

Can the United States escape justice by claiming that President Richard Nixon — was acting within the scope of his office when he murdered René Schneider, and when he ordered the Chagos islanders deported/exiled from their homeland — and because he was entitled to absolute immunity in a suit for damages for his criminal torts, so too the United States is entitled to assert his same defense, and therefore the U.S. Court has no jurisdiction to award damages against United States to the victims?:

“Sec. 2674. — Liability of United States ...

With respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled.”

Federal Tort Claims Act, 28 U.S.C. § 2674, excerpt, bold-face added.

Coming-up:

Do Robert McNamara and other U.S. officials have qualified immunity to commit international crimes? In a suit for damages, is the United States “entitled to assert” their defense?

Mitchell v. Forsyth, 472 U.S. 511 (June 19 1985) (U.S. Attorney-General John Mitchell had qualified immunity from a suit for damages for exercising his discretion to authorize a warrantless wiretap in a domestic security investigation, as Attorneys-General had secretly done in six previous Administrations, because at the time there was uncertainty about its legalilty, though the U.S. Supreme Court later outlawed such wiretaps as violations of the Fourth Amendment to the U.S. Constitution).

If President Richard Nixon ordered the deportation/exile of the Chagos islanders, was he entitled to absolute immunity for that act? And is his estate now immune? And, if so, is the United States entitled to that same absolute immunity?

Nixon v. Fitzgerald, 457 U.S. 731 (June 24 1982) (U.S. President has absolute immunity from damages liability as to all acts within the outer perimeter of his duties of office).

To be discussed. But, these immunities are personal to U.S. officials, to enable them to do their jobs without fear of personal liability for damages (they have no immunity from criminal prosecution). This rationale, which gives rise to the privilege, does not apply to the United States. Otherwise, there could be no tort claims against the United States, as virtually every such tort is arguably legal, even though the Court finds it to be illegal.

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And what of punitive damages and interest on this 30-year tort?

Can the United States escape the justice of punitive damages and interest which any other wrongdoer would have to pay in these circumstances?

For intentional torts, like this one against the Chagos islanders, Courts usually award punitive damages to the victims, in addition to their actual damages — not to recompense them multiple times for their actual loss, but instead — to punish the tort-feasors for the willful, intentional, deliberate character of their wrongdoing, and to deter on-lookers who might be tempted to profit from the same wrongdoing.

But not against the United States. The Judge wouldn’t hesitate to award punitive damages against individual U.S. officials, corporations, and others, for what they did to the Chagos islanders. But against the United States itself: No. No matter how violent, willful, intentional, and criminal U.S. officials may be, and no matter that they act on orders from U.S. Officers at the highest level of the U.S. Government, Congress prohibits U.S. Courts from awarding punitive damages against the United States on tort claims.

Additionally, unlike other wrongdoers, the United States pays interest on the damages it causes only from the date of the Court order (eg: 2003), not from the date of the injury (30 years previously, in the case of the Chagos islanders):

“Sec. 2674. — Liability of United States

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Federal Tort Claims Act, 28 U.S.C. § 2674, excerpt, bold-face added.

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The Chagos islanders desire a jury trial, for questions of fact and the size of damages. And, for their claims against individual U.S. officials and Halliburton Corporation, they’re entitled that under the U.S. Constitution (Seventh Amendment).

But not against the United States. The U.S. Supreme Court has held that actions against the United States, because they require a waiver of sovereign immunity, are not the common law actions to which the right of a jury trial attaches, though Congress has authority to permit a jury trial against the United States if they want to. Galloway v. United States, 319 U.S. 372 (1943).

For money damages against the United States, Congress prohibits a trial by jury under the Federal Tort Claims Act:

“Sec. 2402. — Jury trial in actions against United States

Subject to chapter 179 of this title, any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a)(1) shall, at the request of either party to such action, be tried by the court with a jury.”

Federal Tort Claims Act, 28 U.S.C. § 2402, bold-face and links added.

What Congress was afraid of, in 1946, when they decided to distrust their fellow citizens, I haven’t researched (as the legislative history is not on the internet). But, Congress has good reason to fear the wrath of a jury of U.S. citizens deciding the size of a just damage award against their own Government for state-sponsored international crime by their own U.S. Government officials.

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Where they can’t sue the United States for damages for intentional torts, victims can nevertheless sue individual U.S. employees personally in a Bivens action. And this is why the Chagos islanders have also sued Robert McNamara (then U.S. Secretary of Defense), and other U.S. officials, for their deportation/exile.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (search, seizure, arrest in violation of clearly established constitutional rights apparent to a reasonable person).

Congress modified Bivens in 1988, and now victims can sue U.S. officials personally, but not the U.S. Government, only if a reasonable person would know that the particular abuse they dispensed was a clear violation of the U.S. Constitution or a U.S. statute which otherwise authorized their action (ie: not for U.S./international common-law crime/torts). 28 U.S.C. § 2679.

To empower their agents to obey orders without fear of personal consequences, U.S. Executive Branch officials are careful to create ambiguities and uncertainties by asserting legal opinions and their view of their political question authority to take actions the Constitution and other laws appear to prohibit. And, Members of Congress are likewise careful to craft ambiguities and uncertainties into the laws they enact which pertain to the conduct of law-enforcement officers, the U.S. intelligence agencies, and the U.S. Military.

The U.S. Attorney-General is then free to substitute the United States as a defendant in place of any U.S. official sued — as the U.S. Attorney-General has done in this case of the Chagos islanders — and the taxpayers pay the damages, unless — as the U.S. Government maintains in this case of the Chagos islanders — at least one of the 13 exceptions to the FTCA applies, leaving the victims with no damage remedy for the wrongs done to them by the United States.

This freedom to violate the law on orders is a core law of a fascist state, the backbone of the Nazi legal system, and the foundation of United States foreign policy.

See Mitchell v. Forsyth, 472 U.S. 511 (June 19 1985) (uncertainty in U.S. law licensed the U.S. Attorney-General to violate it) and the Westfall Act: Federal Employees Liability Reform and Tort Compensation Act of 1988 (28 U.S.C. § 2679) (U.S. employees are immune from an action for damages for their torts committed within the scope of their employment, including those predating this law, unless a [clear] violation of the U.S. Constitution or a statute which otherwise authorizes their action) and Gutierrez De Martinez v. Lamagno, 515 U.S. 417 (June 14 1995) (a certification by the U.S. Attorney-General’s designee that, at the time of a midnight automobile accident in Columbia, a DEA Special Agent — immune from suit there due to his diplomatic immunity, hence suit in the U.S. Court — was acting within the scope of his employment, is reviewable in a U.S. Court and, if correct, deprives the victim of a remedy for damages inflicted by his alleged intoxicated negligence because, upon substitution of the United States as defendant, the case becomes governed by the Federal Tort Claims Act which deprives U.S. Courts of jurisdiction to award damages against the United States for “any claim arising in a foreign country” under 28 U.S.C. § 2680(k)).

 

Return to Bancoult v. McNamara (D.D.C., No. 01-CV-2629, filed Dec. 20 2001).

Forward to Alien Tort Claims Act.

© 2002 Charles Judson Harwood Jr.

This document may be freely quoted.

CJHjr

Posted Sept. 1 2002. Updated Jan. 11 2004

http://homepage.ntlworld.com/jksonc/bancoult-ftca.html