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Gonzalez-Vera (D.D.C., Sept. 17 2004), subsequently, 449 F.3d 1260 (D.C. Cir., No. 05-5017, June 9 2006).

See, the criminal tort doctrine, on complicity of U.S. federal judges in U.S. government violent crimes.

“ Plaintiffs assertions that Kissinger’s conduct was wrongful, even very wrongful, is of no legal moment.”

Henry Harold Kennedy Jr., p.13

United States District Court for the District of Columbia






Civil Action 02-02240 (HHK)
 )
Laura Gonzalez-Vera, et al.,)
Plaintiffs,)
)
v.)
)
Henry Alfred Kissinger, et al.,)
Defendants.)
 )

Memorandum Opinion

By this action, plaintiffs seek to hold defendants, the United States of America and Henry Alfred Kissinger, liable for injuries they and their relatives sustained at the hands of persons in Chile whose efforts led to and, thereafter, sustained the regime of General Augusto Pinochet. ¶

Claiming that defendants assisted and condoned the actions of those who subjected them and those whom they represent to inhuman and degrading treatment, plaintiffs assert causes of action based on international law, District of Columbia tort law, the laws of Chile, the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified as a note to 28 U.S.C. § 1350), and the Alien Tort Claims Act, 28 U.S.C. § 1350.

Presently before this court is defendants’ motion to dismiss [#5]. ¶

Defendants move to dismiss this action on the grounds that plaintiffs’ claims are nonjusticiable under the political question doctrine and are barred against the United States by sovereign immunity and against Kissinger by absolute and/or qualified immunity. ¶

Defendants also assert that plaintiffs fail to state a claim for which relief can be granted. ¶

reprisals

Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that defendants’ motion must be granted.{p.2}

I.
Background Information

The following recitation assumes the truth of the factual assertions in plaintiffs’ complaint. 1  ¶

Plaintiffs’ claims arise out of United States involvement in Chilean affairs in the 1970s. ¶

During much of this time, Kissinger was a high ranking government official, serving as Assistant to the President for National Security Affairs 2  {copy} from January 20, 1969 to November 3, 1975, and as Secretary of State from September 22, 1973 until January 20, 1977.

In 1970, Salvador Allende, a Marxist, became President of Chile after a democratic election. ¶

In order to prevent him from governing Chile, defendants supported and encouraged members of the Chilean military who were willing to organize a coup against Allende even though they were fully aware of the human rights violations that would follow. ¶

Defendants provided money and guns to coup plotters that were used to eliminate any person standing in the way of a successful coup.

An unsuccessful coup attempt occurred in October 1970. ¶

A successful coup on September 11, 1973, however, led to the repressive regime of General Augusto Pinochet. ¶

After the coup, from 1973 until 1978, the Chilean Directorate of National Intelligence (“DINA”), headed by General Manuel Contreras Sepúlveda, coordinated a scheme of brutal repression, including a system of arrests, torture, execution, and disappearances, to control the activities of and eliminate individuals associated with the political left who opposed Pinochet’s regime. ¶

Plaintiffs and their relatives were among the victims of that repression. ¶

Based on reports from {p.3} the Assistant Secretary of State for Inter-American Affairs and the Central Intelligence Agency (“CIA”), Kissinger was well aware of the gross human rights violations DINA committed. ¶

In the early 1970s, the United States assisted DINA by teaching DINA agents counterinsurgency and torture tactics at a U.S. Department of Defense facility.

Kissinger expressed disagreement with any attempt to limit Pinochet’s economic and military power and misled the international community into thinking that he opposed General Pinochet’s repression. ¶

For example, in 1976, at a meeting of the General Assembly of the Organization of American States, Kissinger gave a speech in which he advised Pinochet to achieve progress on human rights to improve Chile’s image in the U.S. Congress. ¶

Behind closed doors, however, Kissinger indicated to Pinochet that the U.S. Government was sympathetic to Pinochet’s goal of eliminating any ideological opposition.

II.
Analysis

A.
Nonjusticiability

“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” ¶

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). ¶

Cases that are nonjusticiable because of the political question doctrine are those in which there is

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an {p.4} unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). If any one of these six factors applies, the case is nonjusticiable. Id.

Defendants argue that this action is nonjusticiable because it implicates U.S. foreign and national security policy. ¶

Characterizing this case as one in which the court would have to determine whether the United States should have assisted those plotting to overthrow the Allende government and supported the repressive regime which replaced it, defendants contend that such matters are committed to the discretion of the political branches of government and would be impossible to adjudicate without an initial policy determination of a kind clearly for nonjudicial discretion, an undertaking prohibited under the first and third Baker factors. ¶

Defendants also argue that the second Baker factor applies as there are no judicially discoverable and manageable standards for resolving plaintiffs’ claims. 3  ¶

Plaintiffs, defendants argue, do not {p.5} allege a violation of the Constitution, a federal statute, or self-executing treaty. ¶

Furthermore, District of Columbia tort law fails to supply requisite standards because the “reasonableness” standard upon which tort law is founded cannot be assessed in the foreign and national security context.

Plaintiffs respond that this case is justiciable because they do not challenge defendants’ foreign policy but, instead, their violations of individual human rights. ¶

Drawing a distinction between foreign policy decisions and the implementation of such policy, plaintiffs argue that challenges to the implementation of policy, unlike challenges to the policy decisions themselves, are justiciable. 4  ¶

Plaintiffs forcefully argue that a decision not to review defendants’ actions would be contrary to the very purpose of the judiciary — to protect individual human rights — as established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). ¶

The Court in Marbury stated, ¶

“it is a settled and invariable principle ... that every right, when withheld, must have a remedy, and every injury its proper redress,” ¶

id. at 163 (quoting Blackstone, vol. 3, p. 109), ¶

William Blackstone (1723-1780), Commentaries on the Laws of England (First Edition, 1765-1769) {LCCN: 12013571}; (St. George Tucker Edition, 1803, volume 4) {LCCN: 12013568}CJHjr.

and that

“[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” ¶

Id. at 170. ¶

Because it is the core function of the judiciary to protect fundamental rights, plaintiffs assert that the separation of powers interests that underlie the political question doctrine should not deter this court from adjudicating this controversy. 5  {p.6}

The issue of whether this case is non-justiciable under the political question doctrine is a close one. ¶

On the one hand defendants are correct when they assert that this action implicates this nation’s foreign affairs and thus involves matters that are committed to the political branches of government. ¶

On the other hand, as plaintiffs point out, and as the Supreme Court has explicitly stated, ¶

“it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” ¶

Baker, 369 U.S. at 211. ¶

Just where the nonjusticiability line is drawn, however, is very difficult to discern. ¶

The District of Columbia Circuit has expressly recognized the problem. In Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988), the D.C. Circuit stated ¶

“[n]o branch of the law of justiciability is in such disarray as the doctrine of the political question,” and that “there is no workable definition of characteristics that distinguish political questions from justiciable questions, and ... the category of political questions is more amenable to description by infinite itemization than by generalization.” ¶

Id. at 933 (internal quotation marks and citation omitted). ¶

For this reason the District of Columba Circuit finds the ¶

“blanket invocation of the political question doctrine to be inappropriate.” ¶

Id.

Because of its apprehensions about the current state of the political question doctrine, the D.C. Circuit has sought, when possible, to decide cases on other grounds. ¶

For example, in {p.7} affirming the district court’s dismissal of an action brought against President Reagan alleging violations of individual rights resulting from the United States support of the “Contras” in Nicaragua, the D.C. Circuit stated,

Without necessarily disapproving the District Court’s conclusion that all aspects of the present case present a nonjusticiable political question, we choose not to resort to that doctrine for most of the claims. Since we find other bases for dismissing the suit — and bases which do not expand our jurisdiction by resolving the assertedly political question on its merits — we prefer to rest our affirmance of the District Court’s judgment in most respects on different grounds.

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985), see also Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992) (“We affirm the district court’s order on the [discretionary function exception] ground and express no opinion on that court’s alternative, ‘political question’ rationale.”); Tel Oren v. Libyan Arab Republic, 726 F.2d 774, 798 (D.C. Cir. 1984) (Edwards, J., concurring) (“It is therefore clear that the political question doctrine is a very limited basis for nonjusticiability.”).

In light of the D.C. Circuit’s hesitance to apply the ill-defined and nebulous political question doctrine and the defendants’ failure to provide a principled basis to distinguish this case from cases where the judiciary has resolved legal questions that touch on the manner in which the United States pursues its foreign policy objectives, 6  this court declines to apply the doctrine {p.8} in this case. ¶

Rather, the court shall address the other grounds for dismissal asserted by defendants. 7 

C.
Sovereign Immunity

Sovereign immunity shields the federal government from suit unless it is waived. FDIC v. Meyer, 510 U.S. 471, 475 (1994); see also United States v. Sherwood, 312 U.S. 584, 586 (1941). ¶

Because sovereign immunity is jurisdictional in nature, Meyer, 510 U.S. at 475, ¶

“the terms of [the government’s] consent to be sued in any court define that court’s jurisdiction to entertain the suit,” ¶

Sherwood, 312 U.S. at 586. ¶

As the Supreme Court has often observed, waiver of sovereign immunity must be ¶

“unequivocally expressed in the statutory text,” ¶

Lane v. Pena, 518 U.S. 187, 192 (1996), and ¶

“strictly construed, in terms of its scope, in favor of the sovereign.” ¶

Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (citations omitted). 8  {p.9}

Plaintiffs argue that sovereign immunity does not bar their suit against the United States because this action is premised on violations of peremptory, or jus cogens, norms of international law, ¶

“a principle of international law that is ‘accepted by the international community of States as a whole as a norm from which no derogation is permitted ....’” ¶

Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1173 (D.C. Cir. 1994) (quoting Committee of U.S. Citizens, 859 F.2d at 940). ¶

Plaintiffs also contend that principles of comity require that the United States not be afforded immunity for conduct for which it denies immunity when committed by foreign nations. See Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq.

The problem for plaintiffs is that their position, in effect, has been addressed and rejected by the D.C. Circuit in Princz, 26 F.3d at 1174, and again in Joo v. Japan, 332 F.3d 679, 686-87 (D.C. Cir. 2003) {36kb.html, 65kb.pdf}. ¶

In Princz, an American survivor of the Holocaust sued the Federal Republic of Germany for injuries he suffered as a slave laborer in Nazi concentration camps during World War II. ¶

While acknowledging that ¶

“it is doubtful that any state has ever violated jus cogens norms on a scale rivaling that of the Third Reich,” ¶

the D.C. Circuit concluded that violations of jus cogens norms did not constitute an implied waiver of immunity under the FSIA because the foreign state never expressed an intent to allow itself to be sued for jus cogens transgressions. Princz, 26 F.3d at 1174 ¶

(“We have no warrant, therefore, for holding that the violation of jus cogens norms by the Third Reich constitutes an implied waiver of sovereign immunity under the FSIA.”). ¶

While Princz concerned foreign sovereign immunity, its reasoning is equally applicable here. ¶

Indeed, the case for waiver here is less persuasive than in Princz, because unlike foreign {p.10} sovereign immunity, there can be no implied waiver of federal sovereign immunity. See Lane, 518 U.S. at 192. ¶

 

Accordingly, sovereign immunity bars plaintiffs’ claims against the United States and the United States must be dismissed from this action. ¶

The court now turns to consider whether Kissinger is immune from suit.

D.
Westfall Act

The Federal Employees Liability Reform and Tort Compensation Act, also known as the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 (codified at 28 U.S.C. § 2671 et seq.), provides that federal officials are immune from suit for money damages for their neglectful or wrongful conduct as long as they act within the scope of their employment. See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 163 (1991); Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C. Cir. 1995) {63kb.html/txt}. ¶

The Westfall Act authorizes the Attorney General or her designee to certify that a federal employee was acting within the scope of the employee’s employment when an incident giving rise to a lawsuit occurred. See 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3(a) {July 1 2002: 5kb.txt; 25kb.pdf; current rule, § 15.4: 5kb.txt; 25kb.pdf}. ¶

Upon certification, unless challenged, the United States is substituted as the defendant. 28 U.S.C. § 2679(d)(2); Haddon, 68 F.3d at 1423 {63kb.html/txt}. ¶

If the certification is challenged, however, the court is empowered to conduct an independent review. See Id. ¶

If after such review, the United States is substituted as the defendant, a plaintiff’s only avenue for relief is through the Federal Tort Claims Act. See 28 U.S.C. § 2679(b)(1); Smith, 499 U.S. at 161-62.

Defendants argue that because the Attorney General’s designee has certified that Kissinger was acting within the scope of his employment at the time of the incidents that underlie this action, he is entitled to immunity and this action should be dismissed. ¶

Plaintiffs challenge the certification, maintaining that violations of jus cogens norms, including crimes against humanity {p.11} and torture, cannot be the kinds of acts Executive Branch officials are employed to perform. 9  ¶

Appreciating that an important foreign policy objective of the United States during the time covered by this suit was to prevent the spread of Communism, plaintiffs contend that neither the Congress nor the President, collectively Kissinger’s “master,” expected or encouraged him ¶

“to promote U.S. interests abroad through support and encouragement of known human rights violators.” ¶

Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 28. ¶

In providing such support and encouragement, plaintiffs argue that Kissinger was acting ultra vires. ¶

In support of their position that Kissinger’s conduct was ultra vires, plaintiffs point to statements from executive branch {p.12} officials regarding U.S. actions in Chile 10  and the “necessity” of two investigations by Congress of the events that are the subject of this suit, one conducted in the 1970s and the other in the 1990s. 11 

Assuming the truth of plaintiffs’ factual allegations concerning Kissinger’s conduct—as opposed to their characterization of such conduct—the court concludes that Kissinger acted within the scope of his duties as Senior Advisor to the President for National Security Affairs and as Secretary of State at all times pertinent to this action. ¶

Neither the statements by State Department officials concerning the involvement of the United States in the 1973 coup, made long after the events to which they refer, nor the two congressional investigations plaintiffs reference support the proposition that Kissinger acted outside the scope of his offices. ¶

Indeed, Congress’s Church Report shows that U.S. support for the Chilean coup plotters originated in a direct order of the President of the United States. Staff Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 1st Sess. (1975), available at {p.13} http://foia.state.gov/Reports/ChurchReport.asp. ¶

The declassified memorandum of conversation between Pinochet and Kissinger that plaintiffs claim shows Kissinger’s sympathy with Pinochet’s goal of eliminating ideological opposition, when read in context, also does not support their contention that Kissinger acted beyond the scope of his employment. 12  ¶

To the contrary, Kissinger expressed that human rights abuses in Chile complicated Chile’s relationship with the United States and that the United States wanted to know how Chile intended to improve in the area of human rights. ¶

Thus, it appears that Kissinger’s actions were taken in accordance with the U.S. policy towards Chile at the time.

Plaintiffs assertions that Kissinger’s conduct was wrongful, even very wrongful, is of no legal moment. ¶

As defendants point out, the immunity provided by the Westfall Act explicitly extends to ¶

“wrongful act[s],” ¶

28 U.S.C. § 2679 (b)(1). ¶

If the immunity only extended to lawful {p.14} acts it ¶

“would only be available where it is not needed; in effect, the immunity doctrine would be completely abrogated.” ¶

Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) (internal quotation marks and citation omitted). 13 

i.
Alien Tort Claims Act

Even if a federal employee is determined to have acted within the scope of his employment he is not immune to suit if one of two exceptions to the Westfall Act applies. ¶

Congress preserved a federal employee’s individual liability for ¶

“a violation of the Constitution of the United States,” ¶

28 U.S.C. § 2679(b)(2)(A), 14  or ¶

“a violation of a statute of the United States under which such action against an individual is otherwise authorized.” ¶

28 U.S.C. § 2679(b)(2)(B). ¶

Defendants argue that other than possibly for their claim under the Torture Victim’s Protection Act, plaintiffs fail to asset a claim that falls within the exceptions. ¶

Plaintiffs do not allege a violation of the Constitution and, defendants maintain, with the possible exception of their Torture Victim’s Protection Act claim, plaintiffs’ claims are either grounded on alleged violations of various treaties or sources of international law. ¶

Defendants contend that plaintiffs’ invocation of the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), is unavailing because it is merely jurisdictional and creates no substantive rights or duties that can be violated. ¶

Defendants are correct. {p.15}

The Alien Tort Claims Act, in pertinent part provides, ¶

“[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the laws or nations or a treaty of the United States.” ¶

28 U.S.C. § 1350. ¶

Recently, in Sosa v. Alvarez-Machain, 540 U.S. __, 124 S.Ct. 2739 (2004) {542 U.S. 692, No. 03-339, June 29 2004, slip opinion: 785kb.pdf, source, bound volume 542: 3mb.pdf}, the Supreme Court held that the ATCA is a ¶

jurisdictional grant ... best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time” the ATCA was enacted in 1789. ¶

Id. at 2761 (emphasis supplied) {542 U.S. 692, 724}. ¶

The Court stated that the First Congress, in enacting the ATCA, ¶

“understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations,” ¶

but determined that the torts that the First Congress had in mind did not extend beyond three primary offenses, namely violation of safe conducts, infringement of the rights of ambassadors, and piracy. 15  Id. ¶

While nothing has “categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law,” they ¶

“should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” ¶

Id. at 2761-62.

In any event and assuming arguendo that the ATCA “provides jurisdiction and a cause of action,” as plaintiffs assert, plaintiff’s ATCA claim still is not one “brought for a violation of a federal statute. See § 2679(b)(2)(B). ¶

As defendants observe, ¶

“the plaintiffs’ argument fails because it conflates the two distinct questions of whether a statute confers substantive rights, on {p.16} the one hand, and whether a statue confers a cause of action to remedy a violation of substantive rights, on the other.” ¶

Defs.’ Reply in Supp. of Mot. to Dismiss at 19-20 (emphasis original). ¶

In sum, the ATCA grants no rights to aliens, but simply provides the federal courts with jurisdiction to adjudicate rights conferred elsewhere. ¶

Accordingly, because United States officials cannot “violate” § 1350, the liability-preserving exception of § 2679(b)(2) does not apply to plaintiffs’ claims.

ii.
Torture Victim Protection Act

The Torture Victim Protection Act (“TVPA”) was enacted in 1992 to amend the ATCA to provide civil liability for torture or extrajudicial killing carried out by an individual ¶

“under actual or apparent authority, or color of law, of any foreign nation.” ¶

TVPA § 2(a), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). ¶

Defendants admit that the definitions of “torture” and “extrajudicial killing” in the TVPA are substantive norms that could give rise to a cause of action. ¶

Assuming arguendo that the TVPA falls within the exception to absolute immunity in the Westfall Act, defendants, nonetheless, move to dismiss plaintiffs’ TVPA claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

Defendants argue that plaintiffs fail to state a claim under the TVPA because it imposes liability only upon individuals acting ¶

“under actual or apparent authority, or color of law, of any foreign nation.” ¶

Id. (emphasis added). ¶

Defendants contend that the TVPA does not provide a basis for asserting a cause of action against Kissinger because he acted under actual or apparent authority, or color of law, of the United States, not a foreign nation. 16  ¶

Plaintiffs respond that {p.17} defendants’ “limited” interpretation of the TVPA is ¶

“not only tenuous, unnatural, and excessively narrow, but also contradicts congressional intent... .” ¶

Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 33. ¶

Also, invoking principles of agency law and principles that hold aiders and abettors liable for misdeeds directly committed by others, plaintiffs assert that Kissinger may be held liable under theories of secondary liability. ¶

Plaintiffs’ position is without merit.

The plain language of the TVPA limits liability to those acting under color of law of a foreign nation. See White v. Paulsen, 997 F. Supp. 1380, 1385 n.1 (E.D. Wa. 1998) (“On its face, the right of action created by the Torture Victim Protection Act is limited to conduct taken under color of law of a ‘foreign’ nation.”). ¶

The legislative history refers to torture or extrajudicial killing committed by foreign actors rather than domestic ones. See, e.g., H.R. Rep. No. 102-367(I), at 3-4, reprinted in 1992 U.S.C.C.A.N. 84, 86 (“[T]he TVPA would extend a civil remedy also to U.S. citizens who may have been tortured abroad.”); id. at 4, reprinted in 1992 U.S.C.C.A.N. 84, 87 (“[O]nly ‘individuals,’ not foreign states, can be sued under the bill.”) (emphasis added); id. at 5, reprinted in 1992 U.S.C.C.A.N. 84, 88 (“The TVPA is subject to the restrictions in the Foreign Sovereign Immunities Act of 1976 [FSIA].”).

dTorture Victim Protection Act of 1991: Report (to accompany H.R. 2092) (U.S. Congress 102-1, House Report No. 102-367, House Judiciary Committee, November 25 1991, 7 pages) {SuDoc: Y 1.1/8:102-367/PT.1, Serial Set: 14083, CIS: 91 H523-18, OCLC: 25532129, GPOcat, paper, microfiche, DL, WorldCat}, reprinted, 1992 U.S.C.C.A.N. 84CJHjr

To find that Kissinger acted under color of foreign law would require the court to conclude that Kissinger acted as an agent of the Chilean government while serving as National Security Advisor or Secretary of State — a far fetched proposition at best and, more importantly and significantly, one that was not alleged in plaintiffs’ complaint. ¶

“One becomes an agent only if another in some way indicates to him consent that he may act on the other’s account” ¶

and the agent consents to the agency relationship. Restatement (Second) of Agency § 15 (1958) {OCLC: 507609, LCCN: 58004270, WorldCat}. {p.18} ¶

None of the allegations in the complaint supports the existence of an agency relationship between Kissinger and Chile. ¶

Thus, “agency” does not provide a basis a for imposing secondary liability on Kissinger.

Plaintiffs argument that Kissinger acted under color of Chilean law because he aided and abetted the Chilean authorities who perpetrated the acts alleged in their complaint is equally unavailing. ¶

Aiding and abetting is a separate cause of action that extends liability ¶

“beyond persons who engage, even indirectly, in a proscribed activity.” ¶

Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 176 (1994). ¶

This theory of liability cannot be stretched to encompass Kissinger’s alleged conduct because he was neither a higher official who authorized and directed acts of torture or extrajudicial killing nor an individual who acted in concert with a foreign state to commit such acts. 17  ¶

The legislative history of the TVPA indicates that Congress was concerned with holding liable higher officials of a foreign state who authorized or directed torture, but did not personally carry out such acts. See S. Rep. No. 102-249, 102d Cong., 1st Sess., 1991 WL 258662 (Nov. 26, 1991). ¶

The Senate Report states that: {p.19}

a higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts — anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.

Id. at 9. ¶

The Torture Victim Protection Act of 1991: Report Together with Minority Views (to Accompany S. 313, as amended) (U.S. Congress 102-1, Senate Report No. 102-249, Senate Judiciary Committee, November 25 1991, 15 pages) {SuDoc: Y 1.1/5:102-249, Serial Set: 14051, CIS: 91 S523-16, OCLC: 25497351, GPOcat, paper, microfiche, DL, WorldCat}, reprinted, 1991 WL 258662CJHjr

Courts have permitted the imposition of aider and abettor liability in cases involving higher officials of a foreign state who authorized or directed torture. See Hilao v. Estate of Marcos, 103 F.3d 767, 776-79 (9th Cir. 1996) {82kb.html} (affirming jury instruction that permitted the estate of former Filipino president to be held liable for torture committed by military under former president’s command); Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325, 1332-33 (S.D. Fla. 2002) {51kb.html, 2731kb.pdf, menu} (denying the motion to dismiss of a former Chilean military officer who allegedly aided and abetted acts of torture committed by other Chilean officials although the defendant did not actually torture individuals himself); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355-56 (N.D. Ga. 2002) {143kb.html, menu} (holding a former Bosnian Serb soldier liable for aiding and abetting torture). ¶

Kissinger, however, was not an official who had higher authority over those in DINA who actually carried out the acts of torture.

Nor do the allegations of the complaint, even if true, state a claim for aiding and abetting on the grounds that Kissinger was a ¶

“‘willful participant’ in joint action with the state or its agents in the deprivation of plaintiffs’ rights.” ¶

Wiwa v. Royal Dutch Petroleum Co., 2002 WL 319887, at *15 {2002 U.S. Dist. Lexis 3293, 109kb.pdf, source, menu, legal, search} (S.D.N.Y. Feb. 28, 2002) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). ¶

The court in Wiwa denied the motion to dismiss of a former managing director of a corporation that allegedly directed and aided the Nigerian government in committing acts of torture and extrajudicial killing by providing financial assistance to the military police who perpetrated abuses of human rights, offered bribes for false testimony, and participated in the campaign to arrest the plaintiffs. Id. at {p.20} * 15-16. ¶

 

In contrast, the allegations in the instant complaint are not that Kissinger was a “willful participant” in the deprivation of plaintiffs rights and the right of those whom they represent. ¶

Plaintiffs’ complaint allege the following facts: 18 

  Kissinger “supported, assisted, and recklessly encouraged members of the Chilean military who were willing to organize a coup against Dr. Allende.” Compl. ¶ 36.

  Kissinger was “fully aware of the foreseeable consequences of [the] coup,” id. ¶ 38, and had information from the CIA assessing that a coup would result in about 10,000 deaths. Id. ¶ 45.

  Kissinger was “well aware of the gross human rights violations committed by the DINA in Chile,” id. ¶ 63, yet “continued to support the regime and [was] reluctant to speak out against these atrocities.” Id. ¶ 68.

  Kissinger expressed disagreement with attempts to limit Pinochet’s economic and military power. Id. ¶ 73.

  While Kissinger advocated human rights in public speeches, he privately told Pinochet that the U.S. Government was sympathetic to Pinochet’s goal of eliminating any ideological opposition. Id. ¶ 74.

The assertions that Kissinger supported the coup against Allende, was aware of the human rights abuses that likely would follow, and generally approved of Pinochet’s regime, is not the same as or the functional equivalent of asserting that Kissinger ordered, authorized, supported, or encouraged the human rights violations perpetrated by Pinochet supporters. {p.21} ¶

Further, the assertion that Kissinger was sympathetic to Pinochet’s goal of eliminating ideological opposition is inadequate to state a claim for aiding and abetting under the TVPA. ¶

An expression of sympathy towards Pinochet’s goal of eliminating ideological opposition does not indicate that Kissinger agreed with Pinochet’s means of accomplishing his goal.

III.
Conclusion

For the foregoing reasons, this court concludes that defendants’ motion to dismiss must be granted. ¶

An appropriate order accompanies this memorandum opinion.


{Signature}

Henry H. Kennedy, Jr.
United States District Judge


Dated: September 17, 2004

______________________

United States District Court for the District of Columbia






Civil Action 02-02240 (HHK)
 )
Laura Gonzalez-Vera, et al.,)
Plaintiffs,)
)
v.)
)
Henry Alfred Kissinger, et al.,)
Defendants.)
 )

Order and Judgment

Pursuant to Fed. R. Civ. P. 58 and for the reasons stated by the court in its memorandum opinion docketed this same day, it is this 17th day of September, 2004, hereby

Ordered and Adjudged that the complaint in this case is Dismissed as to the United States and Henry Alfred Kissinger.


{Signature}

Henry H. Kennedy, Jr.
United States District Judge

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page reference denotes a carryover to the foot of the next page (n.5, n.6, n.8).  CJHjr

 1  Defendants state that plaintiffs’ complaint, “in a number of respects, is contradicted by the historical record.” Defs.’ Mot. to Dismiss at 2.

 2  This position is now titled National Security Advisor.

 3  One of the case cases upon which defendants rely is Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), in which this court found that a challenge to atrocities allegedly committed against the plaintiffs by U.S.-sponsored terrorist forces in Nicaragua presented a nonjusticiable political question. ¶

Sanchez-Espinoza provides scant support for defendants’ position. ¶

First, while the facts in that case are similar to those here and the court’s judgment was affirmed on appeal, the D.C. Circuit on review refused to address the political question issue even though it was the basis of this court’s decision. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985). ¶

Second, the case was decided before the D.C. Circuit’s decision in Committee of U.S. Citizens, which found challenges to the decision of the United States to provide aid to the Nicaraguan “Contras” were not barred by the political question doctrine. See Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 934-35 (D.C. Cir. 1988). ¶

Third, in Sanchez-Espinoza, the court found that a judicial decision on the merits would risk multifarious pronouncements by different branches of the government regarding ongoing foreign policy decisions. See Sanchez-Espinoza, 568 F. Supp. at 600. ¶

Because this case concerns conduct occurring more than thirty years ago, that risk is not present here.

 4  For support, plaintiffs rely primarily on DKT Mem’l Fund, Ltd. v. Agency for Int'l Dev., 810 F.2d 1236, 1238 (D.C. Cir. 1987); Population Inst. v. McPherson, 797 F.2d 1062, 1068-70 (D.C. Cir. 1986); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1511-15 (D.C. Cir. 1984), vacated and remanded for reconsideration, 471 U.S. 1113 (1985).

 5  In support of their position, plaintiffs cite Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980). In Letelier, this court, Green, J., held that the discretionary function {p.6} provisions of the Federal Tort Claims Act and the Foreign Sovereign Immunities Act did not afford a foreign country the right to perpetrate actions that are ¶

“clearly contrary to the precepts of humanity as recognized in both national and international law.” ¶

Id. at 673. ¶

Plaintiffs argue that just like the discretionary function exception, a precept based on separation of powers doctrine, the political question doctrine, which also embodies separation of powers concerns, likewise does not afford executive branch officials discretion to violate human rights.

 6  See, e.g., Antolok v. United States, 873 F.2d 369, 391 (D.C. Cir. 1989) (Wald, J., concurring) (discussing cases in which the Supreme Court adjudicated cases on the merits in spite of significant foreign policy ramifications). ¶

Many of the cases in which courts have found a political question to exist are easily distinguished from this case. Some of the cases have involved challenges to the President’s use of military force or weapons in overt operations. See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973) (finding that the political question doctrine barred review of the United States’ bombing of Cambodia); Industria Panificadora, S.A. v. United States, 763 F. Supp. 1154 (D.D.C. 1991) (refusing to decide a challenge to the government’s deployment of armed forces in Panama), aff’ d on other grounds, 957 F.2d 886 {p.8} (D.C. Cir. 1992); Nejad v. United States, 724 F. Supp. 753 (C.D. Cal. 1989) (finding that a case involving the military’s mistaken decision to shoot down an Iranian airliner presented a political question); cf. Chaser Shipping Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986) (refusing to adjudicate dispute asserting that the CIA negligently placed land mines in Nicaraguan harbor). ¶

The instant case can be distinguished, because the Chilean coup of September 11, 1973, did not involve the overt use of U.S. military forces. This case is also distinguishable from cases that involve the recognition of foreign governments. See Baker, 369 U.S. at 212; United States v. Pink, 315 U.S. 203, 229 (1942); Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938); Antolok v. United States, 873 F.2d 369, 381-82 (D.C. Cir. 1989). The decision to recognize a foreign state is a purely discretionary decision such that the court would have no basis for evaluating its validity. The types of fundamental rights at issue here, however, are not rights that individuals enjoy only at the pleasure of the executive branch.

 7  In a related case, Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), Judge Collyer held that a similar action was nonjusticiable under the political question doctrine. Id. at 259-64. Nonetheless, because of the D.C. Circuit’s reluctance to rely on the political question doctrine, Judge Collyer also addressed the defendant’s immunity arguments as alternative bases for dismissal. Id. at 263 n.13.

 8  A party bringing suit against the United States bears the burden of proving that the government has unequivocally waived its immunity. See, e.g., Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1005 (9th Cir. 1998) {60kb.html, 41kb.html}; James v. United States, 970 F.2d 750, 753 {p.9} (10th Cir. 1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

 9  Whether an employee acted within the scope of employment for purposes of establishing immunity is a question of law, in this case District of Columbia law. See Haddon, 68 F.3d at 1423 {63kb.html/txt}; H.R. Rep. No. 100-700, at 5, reprinted in 1988 U.S.C.C.A.N. 5945, 5949 (expressing congressional intent that, under the Westfall Act, scope of employment be determined according to the law of the state in which the alleged illegal act occurred). ¶

Federal Employees Liability Reform and Tort Compensation Act of 1988: Report (to Accompany H.R. 4612) (U.S. Congress 100-2, House Report No. 100-700, House Judiciary Committee, June 14 1988, 15 pages) {SuDoc: Y 1.1/8:100-700, Serial Set: 13896, CIS: 88 H523-18, OCLC: 18196365, GPOcat, paper, microfiche, DL, WorldCat}, reprinted, 1988 U.S.C.C.A.N. 5945CJHjr

The District of Columbia looks to the Restatement of Agency for its scope of employment standard. See Haddon, 68 F.3d at 1423-24 {63kb.html/txt}. According to the Restatement of Agency, conduct of an employee is within the scope of employment if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

Restatement (Second) of Agency § 228 (1958) {OCLC: 507609, LCCN: 58004270, WorldCat}. ¶

The critical question in determining whether conduct is of the kind the person is employed to perform is whether the action was foreseeable given the duties of the employee. See Johnson v. Weinberg, 434 A.2d 404, 408 (D.C. 1981) (citing Restatement (Second) of Agency § 245); see also Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 30 (D.C. 1979) (“The issue, then, becomes whether the conduct in question is ‘so unforeseeable’ as to make it unfair to charge the (employer) with responsibility.” (internal quotation marks omitted)). ¶

Conduct is foreseeable if it is ¶

“a direct outgrowth of the employee’s instructions or job assignment.” ¶

See Haddon, 68 F.3d at 1424 {63kb.html/txt} (internal quotation marks and citation omitted).

 10  In February 2003 Secretary of State Colin Powell commented that he was “not proud” of the role the United States played in the 1973 coup that brought down Allende. Interview on Black Entertainment Television’s Youth Town Hall, (Feb. 20, 2003) available at http://www.state.gov/secretary/rm/2003/17841.htm {http://2001-2009.state.gov/secretary/former/powell/remarks/2003/17841.htm}. ¶

Plaintiffs also quote the “Executive Branch” as saying that there is a need to judge ¶

“the extent to which U.S. actions undercut the cause of democracy and human rights in Chile,” ¶

Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 28-29, but there is no such statement in the citation provided. U.S. Dep’t of State Office of the Spokesman Press Statement on the Chile Declassification Project, June 30, 1999, available at http://secretary.state.gov/www/briefings/ statements/1999/ps990630.html.

“ One goal of the project is to put original documents before the public so that it may judge for itself the extent to which U.S. actions undercut the cause of democracy and human rights in Chile. Actions approved by the U.S. government during this period aggravated political polarization and affected Chile’s long tradition of democratic elections and respect for the constitutional order and the rule of law.

The Chilean people deserve our praise and respect for courageously reclaiming their proud history as one of the world’s oldest democracies. Healing the painful wounds of the past, Chileans from across the political spectrum have rededicated themselves to rebuilding representative institutions and the rule of law.”

Joe Lockhart, Statement by the Press Secretary (White House, November 13 2000) {copy, copy, copy}, listed, 36:46 WCPD, page 2896 {3kb.txt, 162kb.pdf}, ditto, Richard Boucher, Chile Declassification Project: Final Release (U.S. State Department, Press Statement, November 13 2000), and see, Monte Reel, “Pinochet's Legacy Dims Under Cloud of Corruption, Abuse Probes” (Washington Post, February 24 2005).  CJHjr

 11  Plaintiffs also point to a cable they say was sent by the CIA to its officers in Santiago that purportedly instructed them ¶

“to continue their work of promoting a successful coup in spite of ‘other policy guidance’ that they may receive from other branches of the U.S. government.” ¶

Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss at 29. ¶

The court was unable to locate this document. In any event, this CIA cable is not directly attributable to Kissinger and provides no indication regarding whether he was acting in the scope of his employment.

“ 1. [ Track Two ] {FUBELT} policy, objectives and actions were reviewed at high USG level afternoon 15 October. Conclusions, which are to be your operational guide, follow:

2. It is firm and continuing policy that Allende be overthrown by a coup. It would be much preferable to have this transpire prior to 24 October but efforts in this regard will continue vigorously beyond this date. We are to continue to generate maximum pressure toward this end utilizing every appropriate resource. It is imperative that these actions be implemented clandestinely and securely so that the USG and American hand be well hidden. ...

5. The above is your operating guidance. No other policy guidance you may receive from [ State ] or its Maximum Exponent in Santiago, on his return {U.S. Ambassador Edward M. Korry?}, are to sway you from your course.”

CIA Headquarters, “Eyes Only” telex to CIA Chief of Station (Henry Hecksher), U.S. Embassy, Santiago Chile (October 16 1970, 14:08z, 10:08 a.m. EDT)  [handwritten text replacing redacted text ] {109kb.html/jpg, 138kb.pdf}.

__________________

“ October 15 1970

Memorandum of Conversation:

Dr. Kissinger, Mr. Karamessines, Gen. Haig at the White House – 15 October 1970 ...”

Thomas A. Karamessines, CIA Deputy Director of Plans (covert operations), memorandum of conversation “at high USG level afternoon 15 October{164 kb html/jpg, 219kb.pdf}, at 4:30pm {52kb.pdf}CJHjr

 12  In the declassified memorandum of conversation of June 8, 1976, Kissinger told Pinochet, ¶

“The speech [on human rights] is not aimed at Chile. I wanted to tell you about this. My evaluation is that you are a victim of all left-wing groups around the world, and that your greatest sin was that you overthrew a government which was going Communist.” ¶

Mem. of Conversation at 3, available at http://www.pbs.org/newshour/bb/latin_america/chile/documents/ 6876pinochet.pdf {452kb.pdf}. ¶

Kissinger also said, ¶

“We welcomed the overthrow of the Communist-inclined government here. We are not out to weaken your position.” ¶

Id. at 8. ¶

Plaintiffs rely on these portions of the conversation. ¶

However, Kissinger also told Pinochet:

At the same time, we face massive domestic problems, in all branches of the government, especially Congress, but also in the Executive, over the issue of human rights. But basically we don’t want to intervene in your domestic affairs. We can’t be precise in our proposals about what you should do. But this is a problem which complicates our relationships and the efforts of those who are friends with Chile .... [T]he human rights issue has impaired relations between the U.S. and Chile .... I hope you will shortly remove those obstacles. ... It would really help if you would let us know the measures you are taking in the human rights field.

Id. at 2-3.

¡ Cuidado !

Query:  “Kissinger said”?

This is a MemCon, not a transcript.

Its author is anonymous.

Its source is Henry Kissinger’s office.

A Memorandum of Conversation is a selective, hearsay, summary, of what the writer wants to portray about what was said, pretend was said, conceal was said. What s/he may have innocently omitted to notice was said, because s/he didn’t hear it, didn’t understand it, didn’t think it was relevant to the purposes the MemCon was designed to serve, or wasn’t interested in it.

And Henry Kissinger is notorious in falsifying such U.S. Government documents, to lie, about who said what to whom.

And so, this hearsay account should be treated with respect for the hearsay rules:

  Where it’s an admission against interest, it may be reliable.

  And where it’s not, it should be treated with caution.

And anything Henry Kissinger had the power to falsify, with extreme suspicion:

“ Roger Morris: Tony Lake and I were personally involved working for Kissinger in the first covert peace talks, in Paris. ...

I wanted to say too, Stanley, that if these transcripts are revealing, please be cautious.

One of Tony Lake’s and my assignments after each of the sessions in Paris with Le Duc Tho was to doctor the transcripts so that Henry would look good for posterity.

There was a deliberate and conscious and very elaborate falsification of the record, including the insertion sometimes of humorous and erudite remarks that had not, in fact, been made at the table, but which we thought would serve historians well when they came to judge Henry’s statesmanship.”

Regarding Henry Kissinger: A Panel Discussion on the Making of a War Criminal, moderated by Lewis H. Lapham (editor), panel: Scott Armstrong (National Security Archive), Christopher Hitchens (author), Stanley I. Kutler (author, professor of American institutions, University of Wisconsin), Roger Morris (formerly, National Security Council), Alfred P. Rubin (professor of international law, Fletcher School of Law and Diplomacy, Tufts University) (Harper's Magazine, On-Line Forum, National Press Club, Washington D.C., February 22 2001), C-Span video (request) {1:30:00, 165224369, 162708-1, broadcast, Feb. 22, 23, 25, 2001, April 30, May 3, 2003, April 28, May 1, 2004}, transcript, Christopher Hitchens, “The case against Henry Kissinger: Part one” (Harper's Magazine, February 2001, pages 33-58) , Christopher Hitchens, “The case against Henry Kissinger: Part two” (March 2001, pages 49-74) (“the second oldest continuously-published monthly magazine in the United States ... launched in June 1850”).

There may be an actual tape recording, and/or transcript, of this conversation, among the documents and materials carefully concealed by the U.S. Government, which the Court has authority to order released, in a lawsuit, into the sunshine of public scrutiny.

Under the rules of evidence, an actual tape recording, or transcript, is the “best evidence” of what was said.

And what was not said.  CJHjr

 13  Because the court concludes that sovereign immunity applies and that Kissinger was acting within the scope of his employment, plaintiffs’ tort claims under District of Columbia law must be dismissed. No exception to substitution under the Westfall Act applies for alleged violations of local law. Also, the court rejects plaintiffs argument that the Westfall Act does not confer immunity over international law claims under 28 U.S.C. § 1331.

 14  The Westfall Act exception for constitutional claims is not applicable in the instant case because plaintiffs have not alleged a violation of the Constitution.

 15  These three primary offenses were referred to by Blackstone as offenses against the law of nations that the criminal law of England addressed. Sosa, 124 S.Ct. at 2756 {542 U.S. 692, 715} (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1789)).

 16  Defendants make a very credible argument that Kissinger enjoys qualified immunity from claims grounded on the TVPA, which, in any event, does not have retroactive effect. See discussion in Defendant’s Motion to Dismiss pp. 28-34.

 17  The legislative history of the TVPA indicates, and courts have held, that the TVPA provides a cause of action for aider and abettor liability. See S. Rep. No. 102-249, at 8-9 & n.16, 102d Cong., 1st Sess., 1991 WL 258662 (Nov. 26, 1991); see, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 776-79 (9th Cir. 1996) {103kb.html}; Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d. 1325, 1332-33 (S.D. Fla. 2002) {51kb.html, 2731kb.pdf, menu}; Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355-56 (N.D. Ga. 2002) {143kb.html, menu}; Wiwa v. Royal Dutch Petroleum Co., 2002 WL 319887, at *15-16 {2002 U.S. Dist. Lexis 3293, 109kb.pdf, source, menu, legal, search} (S.D.N.Y. Feb. 28, 2002). ¶

The Senate Report on the TVPA states that the statute is intended to apply to those who ¶

“ordered, abetted, or assisted” ¶

in the torture. S. Rep. No. 102-249, at 8-9 & n.16. ¶

Congress modeled the TVPA on various international agreements condemning torture, many of which provide for aider and abettor liability based on the recognized need to bring to justice the leaders who condone and allow torture as well as the functionaries who carry it out. See id. at 9 n.16; see also Cabello Barrueto, 205 F. Supp. 2d at 1332-33 {51kb.html, 2731kb.pdf, menu} (noting that international law and international treaties all confer liability upon those who order, instigate or abet torture). ¶

Courts have held that the TVPA provides a cause of action for aider and abettor liability.

 18  Of course, the court is bound to accept and give effect to plaintiffs’ factual assertions. It is not required to accept their characterization of the facts or accept the inferences they draw from the facts, however.

 

 

Source: Opinion: https://ecf.dcd.uscourts.gov/cgi-bin/ show_case_doc?28,1286,,, {12kb.pdf}, Order: https://ecf. dcd.uscourts.gov/ cgi-bin/show_case_doc?31,1286,,, {26kb.pdf} (requires a PACER account).

By CJHjr: Formatted (xhtml/css) the Court’s text embedded in the Court’s pdf file, links, text {in braces}, text beside a green bar |, text in yellow boxes, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  .

This case: Gonzalez-Vera v. Kissinger, complaint filed, Nov. 13 2002, dismissed (unpublished) (this document) (D.D.C., No. 02-CV-2240, Sept. 17 2004), appeal docketed, Jan. 27 2005, affirmed, 449 F.3d 1260 {justia, altlaw, 124kb.pdf, copy} (D.C. Cir., No. 05-5017, June 9 2006), petitions to rehear and en banc, filed, July 21, denied, Aug. 17 2006, petition for certiorari, docketed, Nov. 17, denied, Feb. 20 2007 (U.S., No. 06-692).

This document is not copyrighted and may be freely copied.

CJHjr

Charles Judson Harwood Jr.

Posted Feb. 23 2005. Updated May 14 2009.

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