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DoJ, opposition appeal brief: December 27 2004 Schneider, 412 F.3d 190 (June 28 2005), previously, 310 F. Supp. 2d 251 (No. 01-CV-01902, March 30 2004) (U.S.-Chile, murder of René Schneider, Oct. 22 1970).

Criminal Tort Doctrine
Adviser v. Advocate
U.K. Attorney General’s legal opinion: Iraq war.

 

[ Oral Argument Scheduled for March 11, 2005 ]

 

 

United States Court of Appeals for the District of Columbia Circuit

United States Court of Appeals for the District of Columbia Circuit FILED DEC 27 2004, CLERK

_____________

No. 04-5199

_____________


René Schneider, et al., Plaintiffs-Appellants,
v.
Henry A. Kissinger and United States of America, Defendants-Appellees.

___________________

On Appeal from the United States District Court for the District of Columbia

___________________

Brief for Appellees

____________________


William Howard Taft, IV
Legal Adviser
Department of State
Washington D.C. 20510
Daniel Meron
Acting Assistant Attorney General

Kenneth L. Wainstein
Acting United States Attorney

Barbara L. Herwig
(202) 514-5425
Robert M. Loeb
(202) 514-4332
Attorneys, Appellate Staff
Civil Division, Room 7268
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

 


William Howard Taft IV

He did not sign this brief, does not work for the Justice Department, has not entered an appearance, is not listed on the docket sheet, as the other “advocates” are. Hence, the Justice Department lawyers, have no authority, to put his name, on their brief, in this Court.

Charles Judson Harwood Jr.

 


{Unnumbered second page:}

Certificate as to Parties, Rulings, and Related Cases

Appeal

Schneider brief
Schneider appendix
DoJ opposition
DoJ appendix
Schneider reply
Oral argument
Docket sheet

A. Parties and Amici.

1. Plaintiffs in district court and appellants on appeal are: René Schneider; Raul Schneider; and José Pertierra (representative of the estate of General René Schneider).

2. Defendants in district court and appellees in this Court are Henry A. Kissinger and the United States of America. Richard Helms was also named as a defendant in the district court, but was later removed as a defendant by plaintiffs.

B. Ruling Under Review.

The ruling that is the subject of this appeal is the district court’s opinion and order entered on March 30, 2004 (per the Honorable Rosemary M. Collyer), Schneider v. Kissinger, No. 01-1902 (D.D.C). The opinion is reported at 310 F. Supp.2d 251.

C. Related Cases.

There are two cases in the district court that raise similar or related issues to those presented in this case: ¶

  Gonzalez-Vera v. Kissinger, Civ. No. 02-02240 (HHK) (D.D.C) {appeal docketed Jan. 27 2005 (D.C. Cir., No. 05-5017)}; and ¶

  Bancoult v. McNamara, Civ. No. 01-2629 (RMU) (D.D.C) {appeal docketed Feb. 22 2005 (D.C. Cir., No. 05-5049)}. ¶

Counsel is not aware of any other related cases within the meaning of D.C. Cir. Rule 28(a)(1)(C) {304kb.pdf}.

Signature: Robert M. Loeb, Counsel for Appellees

 

{Signature}

Robert M. Loeb
Counsel for Appellees

______________________

{Table of Contents and Table of Cases and Authorities omitted (pages i-viii)}

______________________

{Unnumbered page:}

Glossary

App. Appendix
ATS Alien Tort Statute
FSIA Foreign Sovereign Immunities Act
FTCA Federal Tort Claims Act
TVPA Torture Victims Protection Act
Westfall Act Federal Employees Liability Reform
 and Tort Compensation Act of 1988

{p.1}

 

[ Oral Argument Scheduled for March 11, 2005 ]

 

 

United States Court of Appeals for the District of Columbia Circuit

_____________

No. 04-5199

_____________


René Schneider, et al., Plaintiffs-Appellants,
v.
Henry A. Kissinger and United States of America, Defendants-Appellees.

___________________

On Appeal from the United States District Court for the District of Columbia

___________________

Brief for Appellees

____________________


Statement of Jurisdiction

Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. §§ 1331, 1350. On March 30, 2004, the district court dismissed all of plaintiffs’ claims and entered final judgment. Plaintiffs filed a timely notice of appeal on May 24, 2004. This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. {p.2}

Statement of the Issues

1. Whether the district court properly held that plaintiffs’ claims, which turn upon the wrongfulness of an alleged plan to support a coup in Chile, were nonjusticiable because they necessarily required a court to pass judgment on the means chosen by the President and his advisors to prevent a Socialist regime from coming to power in Chile in the 1970s.

2. Whether the district court properly substituted the United States for defendant Kissinger pursuant to 28 U.S.C. § 2679, where, even accepting plaintiffs’ factual allegations as true, all of the actions were taken within the scope of his employment as Senior Assistant to the President for National Security Affairs.

3. Whether the district court properly dismissed the Torture Victims Protection Act claims, where the actions were taken under color of federal law, not foreign law, and where the alleged actions took place more than 20 years before the enactment of the Act.

4. Whether the claims against the United States were barred by sovereign immunity where plaintiffs admit there is no express waiver of sovereign immunity to support their claims.

Statement of the Case

Plaintiffs in this action are citizens of Chile who seek damages allegedly resulting from the death of their father, General René Schneider, the former {p.3} commander-in-chief of the Chilean Army. A personal representative of General Schneider’s estate also is a plaintiff. Plaintiffs sued Henry A. Kissinger for actions taken in his former capacity as Senior Assistant to the President for National Security Affairs. The district court dismissed all of the claims as nonjusticiable. In the alternative, the court substituted the United States for Dr. Kissinger, as to all but one claim, and then dismissed all of the claims. Plaintiffs then filed the present appeal.

Statutory Provisions at Issue

The relevant texts of 28 U.S.C. §§ 1350, 1350 note, and 2679 are set forth in an addendum to this brief.

Statement of the Facts

A.
Plaintiffs’ Allegations.

According to the plaintiffs’ allegations — which are vigorously contested — in 1970, while serving as Senior Assistant to the President for National Security Affairs, Dr. Kissinger ¶

“designed, ordered, implemented and directed a program of overt and covert activities in Chile with known plotters of a coup d'etat against Chilean President-elect Salvador Allende, leading to the assassination of General Schneider in violation of domestic and international law.” ¶

App. 6 (Compl. ¶ 12). 1  ¶

According {p.4} to the original complaint filed by plaintiffs, Dr. Kissinger took these steps on the direct order of the President of the United States. App. 7-8 (Compl. ¶ 18).

The complaint further alleges that in order for the various military factions in Chile to succeed in a coup, it was necessary to neutralize General Schneider, the Chilean Army commander-in-chief. Two groups of Chilean coup plotters formulated plans to kidnap General Schneider. App. 10, 12 (Compl. ¶¶ 29, 35). On both October 19 and October 20, 1970, two unsuccessful kidnapping attempts were made. App. 12-13 (Compl. ¶¶ 38, 39). On October 22, 1970, coup plotters attempted a third effort at kidnapping General Schneider. This time shots were fired and General Schneider was wounded. App. 13 (Compl. ¶ 40). General Schneider died from his wounds three days later, on October 25, 1970. App. 13-14 (Compl. ¶ 43).

According to the complaint, Dr. Kissinger was informed that coup plotters were planning to kidnap General Schneider. App. 10 (Compl. ¶ 29). ¶

The complaint further alleges that no United States official “gave any instruction to leave General Schneider unharmed” and that it was therefore foreseeable to United States officials that ¶

“the kidnapping would create a grave risk of death to General Schneider and consequent harm to his family.” ¶

Ibid. ¶

For these reasons, the plaintiffs assert that Dr. Kissinger’s {p.5} ¶

“deliberate and willful acts and omissions were the proximate cause of General Schneider’s death.” ¶

App. 13-14 (Compl. ¶ 43). 2 

B.
District Court Proceedings.

1. On September 10, 2001, plaintiffs, the personal representative of General Schneider’s estate and General Schneider’s two children, brought this action against Dr. Kissinger. App. 1-22. They asserted claims under, inter alia, the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, {p.6} Dec. 10, 1984, 1465 85, 23 I.L.M. 1027 (entered into force Nov. 20, 1994); International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force Sept. 8, 1992); the Charter of the United Nations, June 26, 1945, 59 Stat. 1031, TS 993; the Universal Declaration of Human Rights, GA Res. 217 (III), U.N. Doc. A/910 at 71 (1948); customary international law; and, finally, “Laws of the District of Columbia, including but not limited to common law principles of wrongful death, assault and battery, intentional infliction of emotional distress and arbitrary detention.” App. 3 (Compl. ¶ 1).

2. The United States submitted a certification that Dr. Kissinger was acting within the scope of his employment with respect to plaintiffs’ allegations. App. 83. Pursuant to 28 U.S.C. § 2679(d)(1), that certification required substitution of the United States (except as to any claim excepted under § 2679(b)(2)), absent a contrary finding by the district court.

Plaintiffs opposed the substitution, but also amended their complaint to name the United States as a defendant. App. 160.

3. Dr. Kissinger and the United States moved to dismiss the case. ¶

On March 30, 2004, the district court granted defendants’ motion and granted final judgment in favor of defendants. App. 199-218.

a.

In dismissing the case, the district court concluded that ¶

“plaintiffs’ claims present a non-justiciable political question on foreign policy decisions undertaken by {p.7} the Executive Branch in 1970.” ¶

App. 218. ¶

The court explained that the ¶

“decision to support a coup of the Chilean Government to prevent Dr. Allende from coming to power, and the means by which the United States Government sought to effect that goal, implicate policy decisions in the murky realm of foreign affairs and national security best left to the political branches.” ¶

App. 206. ¶

While plaintiffs asserted that this was a “mere tort” action, the court found that the claims inherently required a judgment regarding U.S. foreign policy in the 1970s: ¶

“The legality or propriety of the defendants’ actions in allegedly supporting the attempted kidnaping and resulting death of General Schneider — i.e., whether such conduct were reasonable or ultra vires — can be ascertained only by an examination of the genesis of U.S. foreign policy in 1970 and the President’s decisions on how to implement it.” ¶

App. 208. ¶

The court reasoned that ¶

“[s]econd-guessing the methods by which the Executive Branch chose to deal with a new Socialist regime in Chile in the 1970s vis a vis their effect on foreign citizens is not the proper role of this Court.” ¶

Ibid.

In finding the claims to be nonjusticiable, the district court observed that in the early 1970s, a ¶

“government was poised to assume power in Chile that the President deemed inimical to the interests of the United States. ¶

Whether Executive Branch judgments at that time were correct or wise is not the issue. ¶

The question is whether the discretion to make such decisions and give directions lies solely within the political branches of Government or is subject to review by the Judiciary.” ¶

App. 209. {p.8}

The district court concluded that ¶

“the Executive Branch’s alleged decision to support the kidnaping of General Schneider, in the face of a growing leftist regime in Chile, plainly required one or more initial policy determinations beyond the pale of judicial expertise.” ¶

App. 211. ¶

Resolving plaintiffs’ claims, the court explained, would require, at a minimum, a court to ¶

“determine whether actions or omissions by an Executive Branch officer in the area of foreign relations and national security were ‘wrongful’ under tort law.” ¶

App. 210. ¶

To do so, a court would ¶

“have to measure and balance a myriad of thorny foreign and domestic political considerations, i.e., the magnitude of any threat to the United States and its democratic allies from the spread of Marxism to Chile.” ¶

Ibid. ¶

Thus, the district court held that these were ¶

“inherently political questions” ¶

and that a court ¶

“lacks judicially discoverable and manageable standards to resolve these” ¶

matters. Ibid. ¶

The court added, that ¶

“plaintiffs’ remedy, if any, must be found in the Congress.” ¶

App. 218.

b.

The district court, in the alternative, held that the claims should be dismissed under Rule 12(b)(6). App. 212-218.

The court found that plaintiffs’ challenge to the certification that Dr. Kissinger acted with the scope of his employment was without merit. App. 212-215. ¶

Accordingly, the court substituted the United States for Dr. Kissinger, except as to the Torture Victim Protection Act claim. ¶

In rendering that ruling, the court accepted ¶

“as true the plaintiffs’ factual assertions regarding the parameters of Dr. Kissinger’s job {p.9} role and duties.” ¶

App. 212 n.14. ¶

Thus, the court found that there was no need “for an evidentiary hearing to resolve” the scope of employment issue. App. 212-213 n.14.

The district court rejected plaintiffs’ argument that an alleged “violation of peremptory norms of international law” can never be within the scope of employment. The court explained that ¶

“[i]t is well settled that an employee is capable of committing a variety of illegal or tortious acts for which his employer may be held liable, even though the employer did not hire him for that purpose.” ¶

App. 213.

The district court also rejected plaintiffs’ claim that their international law claims asserted under the Alien Tort Statute fell within § 2679(b)(2)(B)’s exception for a ¶

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

App. 214. ¶

The court held that a claim brought under the Alien Tort Statute is a claim ¶

“based on a violation of international law, not of the [Alien Tort Statute] itself.” ¶

App. 215.

c.

The district court found that the TVPA claim arguably fulfills the requirements of § 2679(b)(2)(B), but found that ¶

“this statute provides no relief against Dr. Kissinger.” ¶

App. 215. ¶

The court explained that the TVPA was inapplicable because Dr. Kissinger was not acting under the color of “any foreign nation.” Ibid. ¶

In addition, the court observed that the “TVPA claims appear to be barred by Dr. Kissinger’s qualified immunity from suit.” Ibid. ¶

The court explained that ¶

“[s]ince the TVPA was passed almost twenty-two years after the events in question, its {p.10} proscriptions could not have been an accepted basis for personal liability in 1970.” ¶

Ibid. ¶

Given this immunity, the court found that there was no need to address “whether Dr. Kissinger is entitled to absolute immunity as a senior White House aide entrusted with discretionary authority in such sensitive areas as national security or foreign policy.” Ibid.

d.

Finally, the court held that the doctrine of sovereign immunity barred claims against the United States. The court rejected plaintiffs’ assertion that the United States does not enjoy sovereign immunity from this lawsuit because ¶

“[t]he acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity.” ¶

App. 216. ¶

The court explained that under binding precedent ¶

“a waiver of sovereign immunity must be explicit” ¶

and cannot be implied. Ibid.

While the amended complaint added claims against the United States under the Federal Tort Claims Act (“FTCA”), the court held that plaintiffs failed to satisfy the FTCA’s administrative claim requirement. Thus, the court concluded that any ¶

“waiver of sovereign immunity expressed in the FTCA is unavailable to the plaintiffs in this case.” ¶

App. 216-218.

Summary of Argument

I.

The district court correctly held that plaintiffs’ claims are nonjusticiable because they require a court to evaluate and judge the alleged wrongfulness of the {p.11} ¶

“decision to support a coup of the Chilean Government to prevent Dr. Allende from coming to power and the means by which the United States Government sought to effect that goal.” ¶

App. 206. ¶

While not every claim that touches on foreign policy is exempt from review, the claims here do not merely “touch” upon matters of foreign relations. ¶

Rather, they necessarily require a court to pass judgment on the reasonableness of the Executive’s response to the possibility that a government deemed inimical to the United States’ interests would come to power in Chile. ¶

The district court properly recognized that such foreign policy and national security evaluations are not properly subject to judicial evaluation.

While plaintiffs attempt to cast their claims as a mere tort action, the district court properly found that their “tort” claims all turn upon the “the legality or propriety of the defendants’ actions in allegedly supporting the attempted kidnaping and resulting death of General Schneider.” App. 208. Thus, ¶

“[r]esolving the present lawsuit would compel the Court, at a minimum, to determine whether actions or omissions by an Executive Branch officer in the area of foreign relations and national security were ‘wrongful’ under tort law.” ¶

App. 210.

Plaintiffs assert that the district court erred by refusing to take all factual inferences in their favor. ¶

The court, however, in ruling on the motion to dismiss, accepted as true all of plaintiffs’ factual allegations. ¶

The court was not required, {p.12} however, to accept plaintiffs’ legal conclusion that their claims did not implicate U.S. foreign policy.

Plaintiffs also question whether the President specifically ordered and/or knew of the plan to kidnap General Schneider as part of the coup efforts. ¶

Whether or not the presidential orders regarding support of the coup were specific as to the plan to kidnap General Schneider or not, however, the claims here nonetheless would improperly require a court to pass judgment on the means chosen to support the coup (and to prevent a Socialist regime from coming to power in Chile).

II.

The district court’s alternative holdings equally provide solid grounds for affirmance.

A.

1. Plaintiffs argue that the district court erred in substituting the United States for Dr. Kissinger under the Westfall Act as to the claims asserted under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). They argue that the ATS claims fall within the Westfall Act’s exception for claims that are “brought for 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). The ATS, however, is solely a jurisdictional statute. Because it creates no substantive statutory rights or duties that can be “violated,” the district court was clearly correct in holding that an ATS claim does not fall within the terms of the exception. {p.13}

2. Plaintiffs also argue that the district court erred in failing to grant an evidentiary hearing on the scope of employment issue. The question whether, accepting plaintiffs’ factual allegations, Dr. Kissinger acted within the scope of his employment, however, presents a question of law, which can be resolved without an evidentiary hearing. Under the facts alleged, it is clear that Dr. Kissinger acted in the scope of employment. As a general matter, developing plans for covert action directed at a foreign government is plainly within the scope of the job of the President’s Senior National Security Advisor. Here, according to the complaint, the kidnapping was undertaken in response to an order from the President to take the necessary steps to prevent Dr. Allende from becoming President of Chile, and to support a military coup to achieve that goal. Plainly, Dr. Kissinger’s conduct as alleged was of the same general nature as that authorized by his employer.

Plaintiffs assert that Westfall Act immunity should not attach because they have accused Dr. Kissinger of “egregious conduct.” The Westfall Act, however, grants immunity for “wrongful” acts taken within the scope of employment, whether egregious or not. Plaintiffs’ suggestion that there should be a broader catch-all exception to the Westfall immunity for all egregious conduct or international law violations is simply a misguided invitation to rewrite the statute.

B.

1. The district court also correctly rejected plaintiffs’ claims asserted under the Torture Victims Protection Act (“TVPA”). The TVPA imposes civil liability only on {p.14} an individual acting “under actual or apparent authority, or color of law, of any foreign nation.” Here, the alleged actions taken by Dr. Kissinger carrying out the directives of the President (whether general or specific) to support the coup and to prevent Dr. Allende from taking power in Chile were taken under color of U.S. law and not “under actual or apparent authority, or color of law of any foreign nation.” There is no valid claim that Dr. Kissinger possessed authority by virtue of the laws of Chile or that he was “clothed with the authority of Chilean law.

2. The district court also correctly found that the TVPA claims were barred by qualified immunity. The TVPA, upon which plaintiffs rely, was passed in 1992, twenty-two years after the events alleged. Thus, its substantive proscriptions cannot provide a basis for subjecting Dr. Kissinger to personal liability for conduct in 1970.

3. The district court ruling on this issue can also be affirmed on the ground that the TVPA was not intended to apply retroactively in these circumstances.

C.

Finally, the district court properly held that the claims against the United States are barred by sovereign immunity. On appeal, plaintiffs do not argue that they satisfy any relevant express waiver of immunity. Rather, they argue that principles of sovereign immunity cannot be applied to claimed violations of jus cogens international law norms. It is established in this Circuit, however, that there is no implied waiver of immunity for so-called jus cogens claims. {p.15}

Standard of Review

The district court’s grant of defendants’ motion to dismiss is subject to de novo review. See Barr v. Clinton, 370 F.3d 1196, 1201 (D.C. Cir. 2004) {47kb.pdf, 47kb.pdf}.

Argument

I.
The District Properly Held the Claims Here Are Nonjusticiable.

The district court correctly held that plaintiffs’ claims here, seeking to hold Dr. Kissinger liable for the death of General René Schneider, are nonjusticiable because these wrongful death claims would inherently require judicial review of the decisions of the President of the United States and his closest advisors, based upon their assessment of the national interest, concerning United States foreign policy with respect to Chile. ¶

While the outer limits of the political question doctrine may not be well defined,  3  as the district court held, this case falls within the heart of that doctrine. App. 209. ¶

It is well established that the political question doctrine excludes from judicial review claims, such as those presented here, that ¶

“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. American Cetacean Society, 478 U.S. 221, 230 (1986). {p.16}

In Baker v. Carr, 369 U.S. 186, 217 (1962), the Court articulated six factors that identify those cases that present such non-justiciable political questions:

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

Id. at 217. ¶

Whenever even only one of these factors is ¶

“inextricable from the case at bar,” ¶

the case must be dismissed as nonjusticiable. Ibid.

The district court correctly held that the present case plainly implicates at least the first four of these factors because all of the claims turn upon the alleged wrongfulness of the ¶

“decision to support a coup of the Chilean Government to prevent Dr. Allende from coming to power,” ¶

App. 206, and the means chosen to carry out the President’s foreign policy directive. {p.17}

A.
Plaintiffs’ Claims Necessarily Require a Court to Judge the Asserted Wrongfulness of
Supporting the Coup in Chile
and Whether
Kidnaping General Schneider Was a Necessary and Appropriate Means to Achieving That End.

There is no question that power to conduct foreign affairs is constitutionally committed to the Executive and Legislative Branches. See, e.g., U.S. Const. Art. I, § 8, Cls. 3, 10, 11, 12, 13; Art. II, § 2; Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) ¶

(“[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative — ‘the political’ — departments”); ¶

Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (the Constitution commits “the entire control of international relations” to the political branches). ¶

The Supreme Court has acknowledged that foreign policy is ¶

“of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.” ¶

Chicago & So. Air Lines. Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). See also People's Mojahedin Organization of Iran v. Department of State, 327 F.3d 1238, 1240-1241 (D.C. Cir. 2003) {60kb.pdf, 60kb.pdf} (same).

While ¶

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

Baker, 369 U.S. at 211, ¶

“[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.” ¶

Haig v. Agee, 453 U.S. 280, 292 (1981). ¶

In the present case the claims do not merely “touch” upon matters of foreign relations. ¶

Rather, as the district {p.18} court held, the claims here would necessarily require a court to evaluate and judge the wrongfulness of the ¶

“decision to support a coup of the Chilean Government to prevent Dr. Allende from coming to power, and the means by which the United States Government sought to effect that goal.” ¶

App. 206. ¶

Thus, the claims inherently ¶

“implicate policy decisions in the murky realm of foreign affairs and national security.” ¶

Ibid.

The district court correctly recognized that the wrongful death claims asserted by plaintiffs must be examined in their proper context. As the court explained, ¶

“[i]t is difficult to see through the lens of more than 30 years ago, when world events conspired to cause concern at the highest echelons of the United States Government that communism would spread across Latin America if Dr. Allende were elected President of Chile.” ¶

App. 206. ¶

The President’s decision to support the Chilean coup plotters came against the backdrop of United States-Soviet rivalry and a number of international crises, all of which in one way or another implicated persistent tension between the two superpowers. ¶

For example, in the spring of 1970, the Soviet Union moved troops and air defense missiles into Egypt to strengthen the defense of the Suez Canal. App. 203 n.5. ¶

In September, several aircraft highjackings occurred in the Middle East. Syria invaded Jordan, where the captured aircraft and their passenger hostages had been flown. United States forces in Europe were placed on alert before the United States both prevailed upon the Soviet Union to pressure the Syrians to {p.19} withdraw and successfully negotiated an end to the hostage crises. Ibid. ¶

While these events were playing out in the Middle East, information came to light that the Soviets — in disregard of the secret understanding regarding Soviet forces in Cuba reached between President Kennedy and Premier Khrushchev at the end of the Cuban missile crisis — were building a submarine base in Cuba. That information, and the prospect for yet another superpower confrontation over Cuba, became public on September 25, 1970. Ibid. ¶

These events, all of which occurred at the same time that the United States was trying to negotiate an end to the Viet Nam War, heightened the United States’ concern over the prospect that Chile under a Marxist president might become yet another Communist base in the Western Hemisphere. Ibid.

Thus, at the time of General Schneider’s death, ¶

“[a] government was poised to assume power in Chile that the President deemed inimical to the interests of the United States.” ¶

App. 209. ¶

In reaction to that threat, plaintiffs allege that the President ordered actions supporting a military coup d’etat in Chile. Plaintiffs allege that ¶

“President Nixon met with Defendant Kissinger * * * and ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of Chile.” ¶

App. 7-8 (Compl. ¶ 18). ¶

Further, the President ¶

“instructed the CIA to ‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” ¶

Ibid. ¶

In addition, ¶

“President Nixon expressed he was ‘not concerned’ about the ‘risks involved,’ and authorized {p.20} $10,000,000 in funds to effect a military coup, requiring that a plan of action to be drafted within 48 hours.” ¶

Ibid. ¶

As a result of the President’s order, ¶

“the CIA established, maintained contacts with, and worked with three different groups of coup plotters.” ¶

App. 9 (Compl. ¶ 25). ¶

The complaint continues that ¶

“[a]ll groups [of plotters] made it clear, and Defendants were aware, that any coup would require the removal of General Schneider * * * .” ¶

Ibid.

Plaintiffs assert that, in that context, Dr. Kissinger and others officials carried out a covert program in furtherance of the President’s directions that included an unsuccessful attempt to kidnap General Schneider and thereby caused his death. ¶

Plaintiffs complain that Dr. Kissinger worked with the CIA to provide material aid to violent coup plotters without regard to the foreseeable impact on the safety and life of General Schneider.

Those claims cannot be adjudicated, however, without reviewing the rationale for the decision of President Nixon to support the coup in Chile and the necessity (and reasonableness) of kidnaping General Schneider as part of those efforts. ¶

As the district court reasoned, ¶

“the Executive Branch’s alleged decision to support the kidnaping of General Schneider, in the face of a growing leftist regime in Chile, plainly required one or more initial policy determinations beyond the pale of judicial expertise.” ¶

App. 211. ¶

A court would, at a minimum, ¶

“be forced to pass judgment on the means used by the United States to keep that government from taking power. In {p.21} so doing, the Court would naturally have to consider whether preventing Dr. Allende from becoming President of Chile was worth supporting a rebel military faction that would likely commit human rights violations.” ¶

App. 211. ¶

Deciding whether and by what means to respond to the possibility that a government inimical to the United States’ interests may come to power in a foreign nation assuredly entails a ¶

“policy determination of a kind for nonjudicial discretion” ¶

and is a matter for which judicially discoverable and manageable standards just do not exist. Ibid.

The district court properly recognized that such foreign policy and national security evaluations are not properly subject to judicial evaluation. As the district court explained, ¶

“[c]ourts are decidedly ill-equipped to consider such questions as they are not privy to all relevant intelligence information, and they have no appropriate legal standard to determine the gravity of the threat to the United States that might be caused by a (hostile) foreign government or the likelihood that certain covert actions would ameliorate or exacerbate that threat.” ¶

App. 211. See also Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, 600 (D.D.C. 1983), aff'd on other grounds, 770 F.2d 202 (D.C. Cir. 1985). See also Chaser Shipping Corp. v. United States, 649 F. Supp. 736, 738-39 (S.D.N.Y. 1986) (suit seeking damages arising from CIA mining of foreign harbor presented non-justiciable political question), aff'd, 819 F.2d 1129 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988). {p.22}

B.
The Inherent Nature of the Claims Does Not Change By Labeling Them as Torts or as Challenges to the Implementation of Foreign Policy.

1. Throughout their brief on appeal, plaintiffs assert that this was a mere tort action, not a challenge to U.S. foreign policy. ¶

The district court properly rejected that contention. All of the “tort” claims presented by plaintiffs turn upon the ¶

“the legality or propriety of the defendants’ actions in allegedly supporting the attempted kidnaping and resulting death of General Schneider.” ¶

App. 208. ¶

That, however, ¶

“can be ascertained only by an examination of the genesis of U.S. foreign policy in 1970 and the President’s decisions on how to implement it.” ¶

Ibid. ¶

As the district court concluded, ¶

“[r]esolving the present lawsuit would compel the Court, at a minimum, to determine whether actions or omissions by an Executive Branch officer in the area of foreign relations and national security were ‘wrongful’ under tort law.” ¶

App. 210.

In order ¶

“to gauge the reasonableness of these foreign policy decisions, [a court] would have to measure and balance a myriad of thorny foreign and domestic political considerations, i.e., the magnitude of any threat to the United States and its democratic allies from the spread of Marxism to Chile.” ¶

App. 210. ¶

Only by assessing for itself the national interest at stake and balancing that interest against the risk of harm to individuals that might result from the challenged Executive Branch action could a court decide whether the United States’ alleged actions toward Chile somehow were “reasonable” or not. ¶

Plainly, the district court was correct in holding that {p.23} ¶

“second-guessing the methods by which the Executive Branch chose to deal with a new Socialist regime in Chile in the 1970s vis a vis their effect on foreign citizens is not the proper role of ¶

of the judiciary. App. 208. See Aktepe v. United States, 105 F.3d 1400, 1404 (11th Cir. 1997) {16kb.html, 22kb.pdf} (“[t]he interjection of tort law into the realms of foreign policy and military affairs would effectively permit judicial reappraisal of judgments the Constitution has committed to the other branches”), cert. denied, 522 U.S. 1045 (1998).

Plaintiffs cite DKT Memorial Fund. Ltd. v. Agency for Intern. Development, 810 F.2d 1236 (D.C. Cir. 1987), as supporting adjudication of their claims on the merits. ¶

In DKT, plaintiffs challenged the lawfulness of the Agency for International Development’s implementation of policy committing the United States not to contribute funds to foreign nongovernmental organizations that perform or actively promote abortion. This Court held that the legal claims did not raise nonjusticiable political questions because plaintiffs’ claims did not turn upon “the political and social wisdom of AID’S foreign policy.” 810 F.2d at 1238. See also Lamont v. Woods, 948 F.2d 825, 832 (2d Cir. 1991) (permitting a court to resolve the claims where “appellees do not seek to adjudicate the lawfulness or political wisdom of the government’s policy, which is to promote foreign schools that serve as ‘study and demonstration centers for ideas and practices of the United States’”). {p.24}

We agree that not all claims that pertain to foreign affairs will necessarily require a court to evaluate the propriety of U.S. policy. Plaintiffs’ allegations here, however, clearly cannot be addressed without passing on the reasonableness of the means by which the United States reacted to the prospect of an Allende presidency, namely providing support and encouragement to military coup plotters with the unintended result that some of those plotters killed General Schneider in a kidnaping attempt. As the district court found, ¶

“[w]hile the plaintiffs are correct that the Court might be able to avoid evaluating the merits of a potential Allende Government in 1970, it would nonetheless be forced to pass judgment on the means used by the United States to keep that government from taking power.” ¶

App. 211. ¶

In so doing, a court ¶

“would naturally have to consider whether preventing Dr. Allende from becoming President of Chile was worth supporting a rebel military faction that would likely commit human rights violations.” ¶

Ibid.

To apply tort or international law concepts to these alleged facts would not only be to second-guess foreign policy decisions made more than 30 years ago. See Aktepe v. United States, 105 F.3d at 1404 {16kb.html, 22kb.pdf}. ¶

It would also open the door to claims seeking judicial scrutiny of any or all policy decisions regarding the conduct of foreign affairs and covert intelligence activities. ¶

As discussed above, however, such matters ¶

“revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,” ¶

Japan {p.25} Whaling Ass’n, 478 U.S. at 230, and, thus, are not proper for adjudication by the judiciary. ¶

At bottom, the wisdom, necessity or (in tort law terms) “reasonableness” of taking such steps on the United States’ behalf are determinations plainly of a nonjudicial character and not susceptible to analysis through any judicially discoverable or manageable criteria. App. 210. ¶


Query:  “Steps on the United States’ behalf”?

And when criminal enterprises develop in the executive branch?

Committing crimes Congress outlawed?

On the President’s orders?

Against the President’s orders?

Exceeding their “scope of employment”?

Doing what the executive branch has no authority to do?

Even if the President approves it?

Because it’s “constitutionally committed for resolution to the halls of Congress” instead?

And not to the President?

What then?

Unlawful enterprises are “steps on the United States’ behalf”?

With no role for the judicial branch?

To declare what the constitution and laws say?

And mean?

These are “determinations plainly of a nonjudicial character”?

“Not proper for adjudication by the judiciary”?

And you went to law school, where?

___________________

“Determinations plainly of a bothersome character.”

To ideologues.

Criminals.

Usurpers.

Independent operators.

Freebooters.

Hijackers.

Dictators.

And their many corporate patrons.

And to their lawyers, who said it was OK.

Many of them now judges.

That, I’ll grant you.  CJHjr


To hold otherwise in this context would lead to the untenable result where virtually any foreign citizen claiming personal injury or death as the result of the conduct of United States’ foreign policy toward his country could maintain an action challenging that policy in our courts. Cf. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) ¶

(“[A]s a general matter the danger of foreign citizens’ using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.”).

C.
In Finding the Claims to Be Nonjusticiable, the District Court Properly Took All Factual Inferences in Plaintiffs’ Favor.

Plaintiffs complain that the district court erred by refusing to take all factual inferences in their favor. ¶

The court, however, in ruling on the motion to dismiss, accepted “as true all of the plaintiffs’ well-pled factual allegations” and drew “all reasonable inferences in favor of the plaintiff[s].” App. 204. ¶

In ruling that the claims here inherently required a judgment of the wrongfulness of the U.S. support of the coup in Chile, the Court accepted plaintiffs’ version of the facts. ¶

The court was not {p.26} required to accept plaintiffs’ legal conclusion that their claims did not implicate U.S. foreign policy. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) ¶

(“the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations.”).

Plaintiffs also argue that the case does not involve a judgment about U.S. foreign policy because they claim that Dr. Kissinger acted independently, and was not carrying out U.S. policy. ¶

Plaintiffs themselves, however, averred that ¶

“President Nixon met with Defendant Kissinger * * * and ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of Chile.” ¶

App. 7-8 (Compl. ¶ 18) (emphasis added). ¶

Plaintiffs further alleged that ¶

“President Nixon instructed the CIA to ‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” ¶

Ibid. ¶

Thus, the suggestion that the claims do not involve the execution of U.S. foreign policy is wholly baseless.

Plaintiffs omitted the specific references to President Nixon in their amended complaint. ¶

On appeal, however, plaintiffs do not actually dispute the alleged order from the President to take the necessary steps to ¶

“prevent Dr. Allende from becoming President of Chile,” ¶

and to assist in the military coup. App. 7-8 (Comp. ¶ 18). ¶

Rather, they challenge whether the President specifically ordered and knew of the plan to {p.27} kidnap General Schneider as part of the coup efforts. See Appellants’ Br. 21, 24. ¶

Whether or not the orders were specific as to the kidnaping plan as part of the coup is, however, irrelevant. Regardless of whether the presidential orders of how to support the coup were specific as to the plan to kidnap General Schneider or not, the claims here nonetheless would improperly require a court to pass judgment on the means chosen to support the coup (and to prevent a Socialist regime from coming to power in Chile).

Moreover, the district court did not err in considering the President’s orders as alleged by plaintiffs. ¶

After full briefing of the political question/nonjusticiability and scope of employment issues on defendants’ motion to dismiss, plaintiffs amended their complaint to add tort claims against the United States and to drop former CIA-Director Helms as a defendant. ¶

In response, defendants renewed their prior motion to dismiss (and the arguments in support thereof) and added an additional argument regarding the new tort claims against the United States. ¶

Plaintiffs, in reply to defendants’ renewed motion to dismiss, agreed to have the district court rule upon the political question/nonjusticiability and scope of employment issues based on the original motion to dismiss and the response thereto both filed in regard to the original complaint (which contained the references to President Nixon’s alleged order). See Memorandum of Points and Authorities in Support of Plaintiffs’ Opposition to Defendants’ Renewed Motion to Dismiss, 1 n.1. ¶

Plaintiffs could have, but did not, {p.28} argue that the amendment of the complaint altered the analysis of these claims. ¶

Thus, they waived any such argument and the district court did not err in limiting itself to the arguments and facts presented to it (including the argument relating to the references to President Nixon’s alleged order to Dr. Kissinger) when ruling upon the renewed motion to dismiss.

II.
The District Court Properly, in the Alternative, Dismissed the Claims Pursuant to Rule 12(b)(6).

Because the district court correctly held all of the claims to be nonjusticiable in nature, there is no need to reach the alternative holdings of the court. ¶

Those rulings are, however, also clearly correct and equally provide grounds for affirmance.

A.
The District Court Properly Substituted the United States for Dr. Kissinger Pursuant to 28 U.S.C. § 2679, Where All of the Alleged Actions Were Taken Within the Scope of His Employment As Senior Assistant to the President for National Security Affairs.

The district court properly substituted the United States for Dr. Kissinger under the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified in part at 28 U.S.C. §§ 2671, 2674, 2679), also known as the “Westfall Act.” ¶

The Westfall Act, generally, confers upon all federal officers and employees a broad absolute immunity from suit for their ¶

“negligent or wrongful act[s] or omission[s]” ¶

while acting in the scope of office or employment. See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 163 {p.29} (1991); Kimbro v. Velten, 30 F.3d 1501, 1504 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145 (1995).

The Attorney General’s designee certified that Dr. Kissinger was acting in the scope of his employment at the time of the incidents out of which the plaintiffs’ claims arose. App. 83. ¶

Thus, absent a showing by plaintiffs to the contrary, Dr. Kissinger was properly held to be entitled to be “dismissed from the action and the United States is substituted as defendant.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995).

1.

Plaintiffs argue that the district court erred in substituting the United States for Dr. Kissinger as to the claims asserted under the district court’s Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), jurisdiction. ¶

This argument has no merit.

The Westfall Act precludes any civil suit against a government employee based upon ¶

“the negligent or wrongful act or omission of [that] employee of the Government while acting within the scope of office or employment,” ¶

and makes an FTCA suit against the United States plaintiffs’ exclusive means of recovery on any such claims. See 28 U.S.C. § 2679(b)(1). ¶

“Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.” ¶

Ibid. ¶

The Westfall Act provides an express exception to this rule of absolute immunity for claims that are ¶

“brought for a violation of a statute of the {p.30} United States under which such action against an individual is otherwise authorized.” ¶

28 U.S.C. § 2679(b)(2)(B).  4  ¶

Plaintiffs argue that their international law claims asserted under the ATS fall within this exception. ¶

The district court properly rejected that argument.

This past term, the Supreme Court held that the ATS does not provide a cause of action at all, but rather is merely a jurisdictional provision. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2754 (2004) {785kb.pdf} (“we agree the statute is in terms only jurisdictional”); id. at 2755 (“we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject”). ¶

Thus, while a claim can be brought under the jurisdiction of the ATS, there simply is no claim that can be “brought for a violation” of this jurisdictional statute. ¶

Because the ATS creates no substantive rights or duties such that this jurisdictional statute can be “violated,” the district court was clearly correct in holding that an ATS claim cannot fall within the terms of 28 U.S.C. § 2679(b)(2)(B). See Smith, 499 U.S. at 173-74. See also Bancoult v. McNamara, __ F. Supp.2d __, Civ. No. 01-2629, slip op. at 14 (D.D.C. Dec. 21, 2004) {appeal docketed Feb. 22 2005 (D.C. Cir., No. 05-5049)} (the ATS “does not confer rights nor does it impose obligations that, if violated, would trigger the § 2679(b)(2)(B) exception”); {p.31} Gonzalez-Vera v. Kissinger, Civ. No. 02-02240, slip op. at 14-16 (D.D.C. Sept. 17, 2004) {appeal docketed Jan. 27 2005 (D.C. Cir., No. 05-5017)}.

Notably, the Court of Appeals in Sosa expressly held that ATS claims are subject to substitution under § 2679. See Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54 (9th Cir. 2001) {64kb.pdf, 64kb.pdf}. ¶

That aspect of the court of appeals ruling was left intact by the Ninth Circuit sitting en banc and by the Supreme Court.  5  ¶

Indeed, the Ninth Circuit panel reached that result even presuming — incorrectly — that the ATS provided a cause of action. ¶

The Ninth Circuit panel held that although the ATS provided a cause of action, the substantive law for an ATS claim was provided by international law, not statute. Accordingly, the Court concluded that because the ¶

“language of § 1350 creates no obligations or duties,” ¶

ATS claims do not fall within the exception for claims ¶

“brought for a violation of a statute.” ¶

28 U.S.C. § 2679(b)(2)(B).

In so holding, the Ninth Circuit relied upon the Supreme Court’s reasoning in United States v. Smith, supra. ¶

In Smith, the Court rejected the argument that a claim for medical malpractice was “authorized” by the Gonzalez Act and therefore fit the 28 U.S.C. § 2679(b)(2)(B) exception for violations of a federal statute. The Supreme {p.32} Court explained: ¶

“[n]othing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or foreign law does not ‘violate’ the Gonzalez Act.” ¶

Smith, 499 U.S. at 174. ¶

The Ninth Circuit reasoned that the same was true of the ATS.

Now that the Supreme Court has clarified that the ATS does not even provide a cause of action, the holding of the Ninth Circuit panel and the district court here are even more clearly correct. ¶

The ATS does not provide a cause of action; nor does the statute itself impose any obligations or duties of care. ¶

Thus, under Smith, the ATS claims do not fall within the Westfall Act’s exception for claims ¶

“brought for a violation of a statute.” ¶

28 U.S.C. § 2679(b)(2)(B).

In their appeal brief, plaintiffs point out that, under Sosa, a federal court acting pursuant to its ATS jurisdiction may, in very limited circumstances, recognize a federal common law claim of an alien alleging a violation of the “law of nations.” Sosa, 124 S.Ct. at 2754 {785kb.pdf}. ¶

This does not, however, help their case. ¶

Even where a court would recognize a federal common law claim, that common law claim would still be for the violation of international law norms (as adopted as federal common law), and not a claim ¶

“for a violation of a statute of the United States.” ¶

28 U.S.C. § 2679(b)(2)(B). See Bancoult v. McNamara, supra, slip op. at 15 {appeal docketed Feb. 22 2005 (D.C. Cir., No. 05-5049)}. ¶

Thus, the district court’s substitution of the United States for Dr. Kissinger as to the ATS claims was plainly correct and should, if this Court reaches the issue, be affirmed. {p.33}

2.

Plaintiffs also argue that the district court erred in failing to grant an evidentiary hearing on the scope of employment issue. ¶

As this Court has held, the Attorney General’s certification that an individual defendant acted with the scope of their federal employment is given “prima facie effect.” Kimbro, 30 F.3d at 1509. ¶

The party challenging a Westfall Act scope of employment certification bears the burden of establishing that the defendant government official acted outside the scope of federal office or employment. Ibid. ¶

Where the scope of employment certification can be upheld, as here, under plaintiffs’ own allegations, there is no need for discovery or an evidentiary hearing. See Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003) {55kb.pdf, 55kb.pdf}; Davric Marine Corp. v. United States Postal Serv., 238 F.3d 58, 66 (1st Cir. 2001) {44kb.html, 44kb.html}. ¶

The question of whether, accepting plaintiffs’ factual allegations as true, Dr. Kissinger acted within the scope of his employment presents a question of law, which can be resolved without an evidentiary hearing. See Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995) {63kb.html}. ¶

As we explain below, because the complaint’s factual allegations show that Dr. Kissinger acted in the scope of employment at the time of the events out of which this case arises, the district court properly resolved that legal issue in Dr. Kissinger’s favor.

Putting aside the plaintiffs’ legal labels therefore and examining their factual allegations, it is abundantly clear that Dr. Kissinger acted in the scope of his office or {p.34} employment. ¶

Under District of Columbia law,  6  a court examines, inter alia, whether an employee’s conduct is “of the same general nature as that authorized” or “incidental to the conduct authorized.” Haddon, 68 F.3d at 1424 {63kb.html} (quoting Restatement (Second) Agency § 229 (1957) {OCLC: 507609, LCCN: 58004270, WorldCat}). ¶

In the present case, according to the complaint, while employed as Senior Assistant to the President for National Security Affairs, Dr. Kissinger ¶

“designed, ordered, implemented and directed a program of overt and covert activities in Chile with known plotters of a coup d’etat against Chilean President-elect Dr. Salvador Allende, leading to the assassination of General Schneider in violation of domestic and international law.” ¶

App. 6 (Compl. ¶ 12). ¶

These alleged actions of course were undertaken in response to the President’s orders. See App. 7 (Compl. ¶ 18).

Plaintiffs argue that the President’s order may have been vague and suggest that the President may not have known about the specific plan to kidnap General Schneider. Plaintiffs do not dispute, however, their own allegation that the President ¶

“ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of Chile,” and “instructed the CIA to ‘play a direct role in organizing a military coup d'etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” ¶

App. 7-8 (Compl. ¶ 18). ¶

Whether or not the President {p.35} knew or was directly involved in the alleged plot to kidnap General Schneider as part of the attempted coup in Chile, it is clear that Dr. Kissinger’s alleged conduct in carrying out the President’s orders to support the coup was a ¶

“direct outgrowth of [his] instructions or job assignment,” ¶

Haddon, 68 F.3d at 1424 {63kb.html}, and, therefore, necessarily in his scope of employment. See Gonzalez-Vera v. Kissinger, supra, slip op. at 12-14 {appeal docketed Jan. 27 2005 (D.C. Cir., No. 05-5017)}. ¶

Moreover, as a general matter, developing plans for covert action directed at a foreign government is plainly within the scope of the job of the President’s Senior National Security Advisor. See, e.g., Executive Order No. 11905 {copy}, 41 Fed. Reg. 7703 (Feb. 18, 1976) (1976 WL 21308 (Pres)) (the Assistant to the President for National Security Affairs will sit on “Operations Advisory Group,” § 3(c)(1), with responsibility to consider and develop policy recommendations to the President “on each special activity in support of national foreign policy objectives,” § 3(c)(2)).  7  ¶

Plainly, Dr. Kissinger’s conduct as alleged in the complaint was of the same general nature as that authorized by his employer, and the district court properly found that {p.36} the “conduct attributed to Dr. Kissinger occurred during the performance of his job function.” App. 214.

3.

Plaintiffs assert that Westfall Act immunity should not attach because they have accused Dr. Kissinger of “egregious conduct.” Appellants’ Br. 17. ¶

This argument misconstrues the nature of immunity granted by the Westfall Act. ¶

That Act grants a broad absolute immunity from suit to all federal employees for their ¶

“negligent or wrongful act[s] or omission[s]” ¶

while acting in the scope of office or employment. See 28 U.S.C. § 2679(b)(1). ¶

Under the Act’s plain terms, ¶

“[a]ny other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.” ¶

Ibid.

Thus, the Westfall Act grants immunity for “wrongful” acts taken within the scope of employment, whether egregious or not. ¶

As the district court held, under D.C. law, an employee’s wrongful acts are not excluded from being within his or her scope of employment, even where the acts are illegal. App. 213. See, e.g., Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (holding that a mattress deliveryman acted in the scope of employment when assaulting and raping a customer); Howard University v. Best, 484 A.2d 958, 987 (D.C. 1984) (holding that a dean acted in the scope of employment when sexually harassing a faculty member); Weinberg v. Johnson, 518 A.2d 985, 988 (D.C. 1986) (holding that laundry employee acted in the {p.37} scope of employment when shooting a customer in a dispute over missing shirts). ¶

Thus, there is utterly no merit to plaintiffs’ claim that Dr. Kissinger’s alleged conduct, taken in response to the Presidential directive to support the coup in Chile, somehow places him outside of the immunity granted by the Westfall Act. See Gonzalez-Vera v. Kissinger, supra, slip op. at 12-14 {appeal docketed Jan. 27 2005 (D.C. Cir., No. 05-5017)}.

As noted above, the Westfall Act does have specific and limited exceptions to its immunity. ¶

Some “egregious” wrongful conduct claims could possibly fall with the Acts’ express exceptions for constitutional money damage claims and for claims for violations of a federal statute, see 28 U.S.C. § 2679(b)(2). ¶

As discussed above, however, neither of these exceptions is applicable here.

Plaintiffs’ suggestion that there should be a broader catch-all exception to the Westfall immunity for all egregious conduct or international law violations is simply a misguided invitation to rewrite the statute. ¶

The language of the statute is clear and there is no textual basis to “read in” additional exceptions to the Act. Indeed, to do so would be to undermine the immunity afforded by Congress. ¶

As this Court has observed in a related context, ¶

“if the scope of an official’s authority or line of duty were viewed as coextensive with the official’s lawful conduct, then immunity would be available only where it is not needed; in effect, the immunity doctrine would be ‘completely abrogate[d]’.” ¶

Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) {p.38} (quoting Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987) (quoting in turn Briggs v. Goodwin, 569 F.2d 10, 15 (D.C. Cir. 1977))).

B.
The District Court Properly
Dismissed The TVPA Claim.

The district court also correctly rejected plaintiffs’ claims asserted under the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (“TVPA”), 28 U.S.C. § 1350 note, as a basis for their suit.

1.

The district court properly concluded that ¶

“this statute provides no relief against Dr. Kissinger.” ¶

App. 215. ¶

The TVPA imposes civil liability only on an individual acting ¶

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

TVPA § 2(a) (emphasis added). ¶

At the time the Act was signed, the “under color of foreign law requirement was understood to be an important limitation of the Act that would prevent it from applying to U.S. operations abroad. See Statement By President George Bush Upon Signing H.R. 2092, 22 Weekly Comp. Pres. Doc. 465 (Mar. 16, 1992) {SuDoc: AE 2.109:22/??, ISSN: 0511-4187, LCCN: 65009929, DL, LFDL, WorldCat} ¶

(“I do not believe it is the Congress’ intent that H.R. 2092 should apply to United States Armed Forces or law enforcement operations, which are always carried out under the authority of United States law.”).

George H.W. Bush (U.S. President, Jan. 20 1989-1993 Jan. 20), “Statement on Signing the Torture Victim Protection Act of 1991” (White House, March 12 1992), Public Papers of the Presidents of the United States: George Bush, 1992-93, pages 437-438 (book 1) {5kb.txt, 29kb.pdf, 29kb.html} {SuDoc: AE 2.114:992-93/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}. And see Walter E. Dellinger III (Assistant Attorney General, OLC), “The Legal Significance of Presidential Signing Statements,” Memorandum for Bernard N. Nussbaum, Counsel to the President (U.S. Department of Justice, Office of Legal Counsel, November 3 1993), 17 Op. Off. Legal Counsel 131 (1999): Opinions of the Office of Legal Counsel of the United States Department of Justice, volume 17, page 131 {SuDoc: J 1.5/4:17-18, ISSN: 0270-2134, LCCN: 80643741, DL, LFDL, WorldCat}, reprinted in “Memorandum for Bernard N. Nussbaum, Counsel to the President” (“November 3 1993, From: Walter Dellinger, Re: Presidential Signing Statements”), 48 Arkansas Law Review 333-346 (1995) {abstract, 705kb.pdf}. See also Dawn E. Johnsen (Acting Assistant Attorney General, OLC, 1997-1998; Deputy Assistant, 1993-1996), “Presidential Non-Enforcement of Constitutionally Objectionable Statutes,” 63 Law and Contemporary Problems 7 (Winter/Spring 2000) {abstract}CJHjr

Here, the plaintiffs allege that Dr. Kissinger supported the coup in Chile on the direct order of the President of the United States. See App. 7-8 (Compl. ¶ 18). ¶

Again, on appeal, plaintiffs question whether the alleged directive from the President to take the necessary steps to “prevent Dr. Allende from becoming President of Chile,” and {p.39} to assist in the military coup, specifically included the plan to kidnap General Schneider. Appellants’ Br. 24. ¶

And, again, that is irrelevant. ¶

Alleged actions taken by Dr. Kissinger carrying out the directives of the President (whether general or specific) to support the coup and to prevent Dr. Allende from taking power in Chile were taken under color of U.S. law and not “under actual or apparent authority, or color of law of any foreign nation.” ¶

Thus, as the district court concluded, ¶

“Dr. Kissinger was most assuredly acting pursuant to U.S. law.” ¶

App. 215.

Relying on an analogy to 42 U.S.C. § 1983, plaintiffs argue that because Dr. Kissinger allegedly coordinated with Chilean coup plotters he must be deemed to be acting under color of Chilean law. ¶

Even under § 1983, where an action is taken by federal officials under federal law, it is not deemed an act taken under color of state law. ¶

See District of Columbia v. Carter, 409 U.S. 418, 424-425 (1973) (because § 1983 only deals with acts accomplished under the color of state law, it “does not reach purely private conduct and * * * actions of the Federal Government”). ¶

See also Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997) {22kb.txt} (“Because federal officials typically act under color of federal law, they are rarely subject to liability under § 1983.”) ¶

As this Court long ago observed, “[t]he cases holding that section 1983 is inapplicable to persons acting under color of federal law are legion.” Greenya v. George Washington University, 512 F.2d 556, 562 n.12 (D.C. Cir.), cert. denied, 423 U.S. 995 (1975). See also Chatman v. Hernandez, 805 F.2d 453, 455 (1st Cir. 1986) {p.40} (§ 1983 does not apply “to persons acting pursuant to federal authority”); Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir. 1979) (§ 1983 “does not apply to federal officers acting under color of federal law”).

Even where courts have incorrectly assumed that a federal official, acting under color of federal law, can possibly be deemed to act under color of state law if he or she conspires or acts in concert with state officials, see Strickland, 123 F.3d at 866 {22kb.txt} (citing cases), the courts generally hold that there is no “state action” under § 1983 unless there has been a misuse of power ¶

possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” ¶

See West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)) (emphasis added). See also Cabrera v. Martin, 973 F.2d 735, 742-743 (9th Cir. 1992) (“To transform a federal official into a state actor, the appellees must show that there is a ‘symbiotic relationship’ between the [federal defendants] and the state such that the challenged action can ‘fairly be attributed to the state.’”). ¶

Thus, even when federal Secret Service agents direct state officials to arrest a suspect, the federal officials are not deemed to be acting under color of state law authority. Rather, it is the state officials who are deemed to be clothed in federal authority. See Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995).

Likewise, here, there is no valid claim that Dr. Kissinger “possessed [authority] by virtue of the laws of Chile or that he was “clothed with the authority of Chilean {p.41} law.  8  ¶

Rather, at all times, Dr. Kissinger was acting as the President’s Senior National Security Advisor and was carrying out the President’s foreign policy directive to support the coup in Chile. ¶

At all times, he was “clothed with the authority of federal law. ¶

Accordingly, as the district court held, his actions are not encompassed by the TVPA. ¶

As another district court recently observed in rejecting a similar TVPA claim against Dr. Kissinger, ¶

“[t]o 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.” ¶

See Gonzalez-Vera v. Kissinger, supra, slip op. at 17 {appeal docketed Jan. 27 2005 (D.C. Cir., No. 05-5017)}. ¶

The same is true here.

2.

The district court also correctly observed that the TVPA claims ¶

“appear to be barred by Dr. Kissinger’s qualified immunity from suit.” ¶

App. 215. ¶

Under the qualified immunity doctrine, federal officials have the right to immunity from suit, unless their conduct violated ¶

“clearly established statutory or constitutional rights of which a reasonable person would have known” ¶

at the time of the alleged actions. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ¶

Here, because a reasonable official acting in 1970 would not have known that supporting a coup in Chile to prevent a {p.42} socialist government from coming to power violated “clearly established statutory or constitutional rights,” immunity is required. ¶

The TVPA, upon which plaintiffs rely, was passed in 1992, twenty-two years after the events in question. Thus, its substantive proscriptions cannot provide a basis for subjecting Dr. Kissinger to personal liability for conduct in 1970.

Plaintiffs do not contest that later-enacted statutes generally do not qualify as “clearly established” law for qualified immunity purposes. ¶

Instead, they argue that an official in 1970 would have had fair warning that kidnaping and extrajudicial killing violated international law. ¶

Immunity is, however, required, absent ¶

“clearly established statutory or constitutional rights.” ¶

Harlow, 457 U.S. at 818. ¶

Established rights under international law have never been deemed a basis for denying qualified immunity.

Moreover, as to the kidnaping claim, it is notable that this past term the Supreme Court in Sosa rejected the argument that an alleged kidnaping directed by federal officials of a Mexican citizen was actionable as a violation of the “law of nations.” Sosa, 124 S.Ct. at 2767-2769 {785kb.pdf}. ¶

Thus, the kidnaping claim here is not even established under plaintiffs’ novel international law theory of immunity.

Furthermore, it would not have been clear in 1970, or even today, that a death resulting from a botched kidnaping attempt by foreign coup plotters in a foreign country would be actionable in federal court. ¶


Query:  “Actionable”?

A violent crime is a violent crime.

Even if a violent, criminal, terrorist, rogue, state carefully preserves its freedom to wage violent crimes and torts, by refusing to permit its own courts to sit in judgment upon them.

As Nazi officials learned, when they too asserted this exact same defense, that — just like the United States — their courts too did not have jurisdiction to adjudicate the violent crimes and torts they too perpetrated, on orders of their leader.

And for this reason, their lawyers too told them it was OK. And they too had nothing to worry about. As long as they too obeyed orders.

But every court which has ever considered this question agrees, that a court’s jurisdiction has nothing whatsoever to do with a crime or tort.

And at some future date, when the bell rings, and a court acquires jurisdiction, or changes its mind and decides it now has jurisdiction, or a new court arises with jurisdiction, then what you did — all those years ago — which was none of a court’s business at the time, is now the court’s business.

And that court will pay not the slightest heed to your whines and moans about retroactivity.

Because you were on notice, at the time, that what you did was a crime or tort.

And so too all the lawyers. Who took the money. And said it was OK. Hoping that bell would never ring.

And in this case, you were on notice, that Congress had not declared war on Chile — or voted to back others with that aim (an act of war):

The sole method to legalize the targeted kidnap/killing of René Schneider (Commander-in-Chief, of the Chile Army).

And the sole method to legalize racketeering activities and other complicity: Inciting, aiding and abetting, conspiring, facilitating, the violent overthrow of a foreign government.

Because the Constitution did not commit this political decision to the “political branches,” as U.S. government lawyers and judges patiently obfuscate.

The U.S. Constitution commits this political decision — initiating war — to a single political branch:

Congress.

And denied the President — and his entire band of minions, and independent operators — a vote:

“ The Court is not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority “to declare war.””

Dellums v. Bush, 752 F.Supp. 1141, 1146 (D.D.C., Dec. 13 1990).  CJHjr


Here, plaintiffs allege that Dr. Kissinger {p.43} was advised that Chilean dissidents planned “to kidnap General Schneider ‘within 48 hours’ as part of a coup plan.” App. 10 (Compl. ¶ 29). ¶

The kidnapping attempt instead resulted in General Schneider’s death from a gunshot wound. App. 13 (Compl. ¶ 40). ¶

There is no claim of a deliberate murder by Dr. Kissinger. ¶

Hence, it would not be established, even today, that such a death would be covered by the TVPA, which speaks to “deliberated killings.” See TVPA § 3(b), 102 Stat. at 73-74.

Thus, it was not established in 1970, nor is it today, that Dr. Kissinger’s alleged actions could support a claim of liability under the TVPA.

3.

The district court did not reach the issue of whether the TVPA was intended to apply retroactively in these circumstances. ¶

That, however, provides yet another basis for rejecting the TVPA claims here.

Where a statute is silent on the matter of retroactivity, as is the case here, the critical inquiry is whether the particular statute at issue ¶

“would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” ¶

Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). ¶

Because the 1992 TVPA (as construed by plaintiffs) would impose liability on federal officials where prior law, including the Westfall Act {1988}, would impose none, the TVPA would have clear retroactive effect if applied in these circumstances. ¶

There being nothing in the text or legislative history of the Act requiring that result, the TVPA should not be construed to apply here. See {p.44} generally Gersman v. Group Health Ass’n. Inc., 975 F.2d 886, 897-898 (D.C. Cir. 1992), cert. denied, 511 U.S. 1068 (1994).

C.
The District Court Correctly Held Sovereign Immunity Bars the Plaintiffs’ Claims Against the United States.

“It is well established that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued * * * , and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” ¶

In re Sealed Case, 192 F.3d 995, 999 (D.C. Cir. 1999) {70kb.html} (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). ¶

It is similarly well established that ¶

“[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, see, e.g.. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 * * * (1992), and will not be implied.” ¶

Lane v. Pena, 518 U.S. 187, 192 (1996). See also Floyd v. District of Columbia, 129 F.3d 152, 156 (D.C. Cir. 1997) {38kb.html, 18kb.txt} (“waivers of sovereign immunity must be unequivocally expressed in statutory text; we cannot imply a waiver of sovereign immunity”).

No waiver of the United States’ sovereign immunity embraces the plaintiffs’ various theories of recovery asserted in their complaint. ¶

Although the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1); 2671-2680 (1994 & Supp. IV 1998) (“FTCA”), is a limited waiver of sovereign immunity with respect to federal employees’ torts committed in the scope of office or employment, plaintiffs acknowledge that they {p.45} have not completed the FTCA administrative claim requirement, see 28 U.S.C. § 2675(a), a jurisdictional prerequisite to instituting suit under the FTCA.

Plaintiffs do not, on appeal, argue that they satisfy the FTCA’s waiver of immunity. Rather, they argue that principles of sovereign immunity cannot be applied to claimed violations of jus cogens international law norms. ¶

It is well established, however, that there is no implied waiver of immunity for so-called jus cogens claims.  9  See Lane, 518 U.S. at 192 (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text”). ¶

Indeed, plaintiffs concede that this argument is barred under Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995). ¶

The argument was also recently rejected by the Court again. See Hwang Geum Joo v. Japan, 332 F.3d 679, 680 (D.C. Cir. 2003) {36kb.html, 65kb.pdf} (“[w]e reject the appellants’ argument that violation of a jus cogens norm constitutes a waiver of sovereign immunity”), {p.46} judgment vacated and remanded on other grounds, 124 S.Ct. 2835 (2004) {182kb.pdf, U.S. No. 03-741}. See also Sampson, 250 F.3d at 1156 {39kb.txt} (“Congress did not create an exception to foreign sovereign immunity under the FSIA for violations of jus cogens norms”); Ye v. Zemin, 383 F.3d 620, 626 (7th Cir. 2004) {49kb.pdf, 49kb.pdf} (the “determination by the Executive Branch that a foreign head of state is immune from suit is conclusive,” even as to jus cogens claims).

Relying upon the dissenting opinion in Princz, 26 F.3d at 1178 (Wald, J., dissenting), plaintiffs ask this Court to overturn circuit precedent and to reconsider the issue. ¶

Princz and Hwang Geum Joo are, however, both correct and establish binding Circuit precedent on this issue.

Moreover, plaintiffs overlook the fact that Judge Wald’s dissent was in reference to foreign state immunity. ¶

In contrast to federal U.S. sovereign immunity, “foreign sovereign immunity is a matter of grace and comity rather than a constitutional requirement.” Republic of Austria v. Altmann, 124 S.Ct. 2240, 2248 (2004) {677kb.pdf}. ¶

Moreover, Judge Wald’s implied waiver theory was a colorable argument in Princz only because the Foreign Sovereign Immunities Act (“FSIA”) expressly permits finding implied waivers of foreign states’ immunity. See 28 U.S.C. § 1605(a)(1); Princz, 26 F.3d at 1173 (under the § 1605(a)(1) of the FSIA “there is no sovereign immunity in a case ‘in which the foreign state has waived its immunity either explicitly or by implication’”). ¶

Nothing in the FTCA or any other federal {p.47} statute provides a comparable basis for finding an implied waiver of the United States’ sovereign immunity for tort or international law-based damages claims. ¶

Neither plaintiffs’ dissatisfaction with the FTCA’s scope nor any principle of international “comity” or “equity” justifies the plaintiffs’ invitation to judicially craft a waiver to sovereign immunity.

Contrary to plaintiffs’ view, federal sovereign immunity is not simply a common law doctrine that can be set aside when deemed unfair. ¶

Rather, to the extent not waived by Congress, the immunity of the United States exists as a matter of constitutional principle, namely the separation of powers. See Sanchez-Espinoza, 770 F.2d at 207 n.5. ¶

Whatever unfairness or asymmetry the plaintiffs perceive between the FTCA and the FSIA is, therefore, for Congress to remedy, if the need exists. ¶

Thus, plaintiffs’ claims against the United States are barred by sovereign immunity and were properly dismissed by the district court. {p.48}

Conclusion

For the foregoing reasons, the district court’s judgment should be affirmed.

Respectfully submitted,


William H. Taft IV
Legal Adviser {below}
Department of State
Washington D.C. 20510

Daniel Meron
Acting Assistant Attorney General


Kenneth L. Wainstein
Acting United States Attorney


Barbara L. Herwig
(202) 514-5425

Signature: Robert M. Loeb

{Signature}

Robert M. Loeb

Robert M. Loeb
(202) 514-4332
Attorneys, Appellate Staff
Civil Division, Room 7268
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

December 27, 2004 {p.49}

______________________

Certificate of Compliance with Rule 32(A)(7)(C) of the Federal Rules of Appellate Procedure

I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and D.C. Circuit Rule 32(a) {304kb.pdf}, that the foregoing brief is proportionally spaced, has a typeface of 14 point and contains 11,716 words (which does not exceed the applicable 14,000 word limit).

Signature: Robert M. Loeb

 

{Signature}

Robert M. Loeb {p.50}

______________________

Certificate of Service

I hereby certify that on this December 27, 2004, I caused copies of the foregoing brief to be sent by U.S. mail and e-mail to:

Michael Tigar
Washington College of Law
4801 Massachusetts Ave., N.W.
Suite 206C
Washington D.C. 20016

Signature: Robert M. Loeb

 

{Signature}

Robert M. Loeb


Adviser v. Advocate

Modus Operandi?

Are we witnessing Henry Kissinger’s modus operandi? In operation? Before our very eyes?

In this U.S. government brief?

Henry Kissinger stands accused of lying, about his bona fides. Deceiving CIA officers, and DIA officers, that what he ordered them to do, Richard Nixon wanted done. But it was what Henry Kissinger wanted done, instead, and not Richard Nixon, indeed against the direct orders of Richard Nixon.

And what do we have here, in this brief?

U.S. government lawyers (Justice Department) telling us, that the State Department Legal Adviser joins with them, in this brief.

The State Department has nothing to do with U.S. government litigation (the exclusive domain of the Justice Department).

So, why would Justice Department lawyers want to put this name on their brief?

Or, more likely, why would their client Henry Kissinger instruct them to do so?

Or, more likely still, why would Henry Kissinger’s legal muscle, William D. Rogers (Arnold & Porter), instruct them to put his friend, Will Taft’s name on this brief?

A lawyer, and an office, neither of which, made any appearance in the trial court below.

A lawyer, and an office, neither of which, entered an appearance, on the docket, in this appeal court.

A lawyer, and an office, neither of which, signed this brief.

Gravitas. Prestige. Influence. Persuasion. Deceit.

People who don’t pay close attention believe State Department lawyers are more trustworthy, than Justice Department lawyers.

Indeed, that any lawyer is more trustworthy than a Justice Department lawyer.

And especially in the present climate, when Justice Department lawyers have been exposed, secretly constructing a shadow state, by secret legal opinions. An elected dictatorship, with the executive branch free, to disobey laws, and commit crimes and torts, on orders of the elected dictator (the President), and his agents, with impunity. And to lie about them on orders, with impunity. And even a permanent dictatorship, because those same secret legal opinions are also believed to assert, that it’s legal for the U.S. President to suspend the constitution and rule by decree, if the CIA and FBI can engineer enough public disturbance to make it look like a good idea. A idea also copied from Adolph Hitler, who did the same, the day after the Reichstag fire, he likely engineered (Feb. 27 1933), a month after forming his government (Jan. 30). (That’s how he got his criminal machine in motion, with the help of his lawyers).

But partly too, because legal advisers are governed by different rules of ethics, as to part of their duties. A secret part.

William Howard Taft IV was Legal Adviser for the U.S. State Department (April 16 2001-2005 February 28).

The ethical duty of a legal “adviser” is to express an honest, candid, reasoned, opinion, to the client, in this case, the State Department. Whether the client likes it or not. It’s “tough love.”

And it’s this reputation, Henry Kissinger would dearly love to trade-on, by having the State Department Legal Adviser endorse this brief, creating the illusion, it’s an honest legal opinion, and not a partisan brief.

But so too the Justice Department itself, and other dark forces in the U.S. government.

No U.S. government official is safe, in relying on a secret legal opinion of the U.S. Justice Department.

Now that those lawyers have been caught, issuing unlawful, secret, legal opinions, most of them still secret.

These dark forces are desperate, to reassure U.S. government officials, they can safely commit crimes and torts on orders, and lie about them on orders, without fear of prison {11 kb, copy, 14 kb, 13 kb}. And suits for damages, which would bankrupt them, and their families. They badly need an independent voice to support their tale, from another part of the government.

Such as the State Department Legal Adviser.

Note: The following sidebar has grown too large for its purpose, to merely illustrate the difference between an adviser and an advocate, and when I finish writing it, I’ll summarize it, make a separate webpage of it, and link to it.  CJHjr

Sidebar:

Iraq War Legal Opinion

The U.K. Attorney General, Peter Goldsmith, issued a secret written opinion (March 7 2003) {693kb.pdf, copy, copy, copy, copy} to Tony Blair (U.K. Prime Minister), which Blair concealed from his Cabinet, until April 28 2005, one week before a U.K. general election (May 5), when he posted it on his website, a day after it was partially leaked to three news organizations.

According to an earlier official report, the secret legal opinion asserted, that the war on Iraq was legal, without a second resolution from the U.N. Security Council, if the Prime Minister (Tony Blair) was “satisfied (beyond reasonable doubt, under U.K. law) there was “hard evidence of non-compliance and non-cooperation” with S/RES/1441 (November 8 2002) {58kb.pdf, 58kb.pdf 58kb.pdf, 63 kb doc} (SC/7564) to justify the conclusion Iraq was in further material breach of its obligations. Butler Report,  379 (July 14 2004) {1043kb.pdf, copy}.

A week later (March 14) he secretly changed his opinion, dropped two requirements (hard evidence, and beyond reasonable doubt), and secretly sought Tony Blair’s written political opinion, unsubstantiated, at no expressed level of certainty, “that Iraq has committed further material breaches as specified in paragraph 4 of resolution 1441” (“this is a judgment for the Prime Minister”) {53kb.pdf}. And Tony Blair complied (March 15) {44kb.pdf}:

“This is to confirm that it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations, as in OP4 of UNSCR 1441, because of ‘false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq to comply with, and co-operate fully in the implementation of, this resolution.’”

He then submitted a Written Answer to Parliament (March 17) {8.4kb.pdf}, drafted by a committee of lawyers, asserting Tony Blair’s asserted political opinion, as if it were his own legal opinion. Concealing, he secretly agreed to be bound by Tony Blair’s asserted political opinion, that “Iraq is in further material breach of its obligations.”

He concluded his Written Answer, asserting this to be his opinion:

“9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”

Had been intended” by whom, he did not state.

And for good reason.

Because secret, dishonest, unexpressed, intentions, of scheming promoters of the resolution, the U.S./U.K., have no bearing on what the resolution means.

But open, honest, expressed, intentions, of the 13 other members of the Security Council, do have a bearing on what the resolution means.

What the resolution means is what it says. And what the parties to the resolution say it means, when they adopt it, and before they adopt it.

U.S. and U.K. law have been settled, for nearly 400 years, that a contemporaneous oral agreement forms part of a written agreement, if it doesn’t contradict it: The “parol evidence rule” and its refinements and exceptions (Countess of Rutland's Case (1604), and progeny).

And especially, when it interprets an ambiguity in the written agreement.

And particularly, if that interpretation is what clinched the deal (the “inducement exception”).

And especially particularly, as in this case, when laced with the added ingredient of estoppel. Which requires no agreement, by the parties making the representation (U.S./U.K.) on which the other parties rely (the 13 other members). Another law, also settled, for centuries, in both the U.S. and U.K.

U.N. Docs.

The U.N. document links {pdf, doc} work, only after the U.N. server sets a session cookie. To get it, visit ODS, click Welcome, click Advanced Search, search once (Symbol: S/PV.4644 ), click the search result link, to reach the “mother.asp” page.  CJHjr

The other members of the Security Council absolutely, utterly, completely, and unanimously, refused to agree to the resolution, unless the U.S. and U.K. would induce them to do so, by agreeing it means what the others said it means, that a second resolution is required to authorize force:

U.N. Security Council meeting 4644 (SC/7564), provisional verbatim record (U.N. Doc. S/PV.4644, November 8 2002, 10:15-11:40 a.m., 13 pages) {75kb.pdf, 75kb.pdf, 99 kb doc, video} (S/PV.4644/Corr.1, 1 page) {19kb.pdf, 37 kb doc}:

U.S.: “As we have said on numerous occasions to Council members, this resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force.”

U.K.: “We heard loud and clear during the negotiations the concerns about ‘automaticity’ and ‘hidden triggers’ — the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response, as a co-sponsor with the United States of the text we have just adopted. There is no ‘automaticity’ in this resolution.”

Every other member of the Council who spoke about it emphasized, forcibly, at the meeting, they would not, and did not, agree to this resolution, except on the understanding it requires a second resolution, to authorize force. Dispelling any ambiguity, about what they agreed to, and what they did not agree to:

France: “The resolution strengthens the role and authority of the Security Council. That was the main and constant objective of France throughout the negotiations which have just concluded. That objective was reflected in our request that a two-stage approach be established and complied with, ensuring that the Security Council would maintain control of the process at each stage. That objective has been attained: in the event ... (UNMOVIC) or ... (IAEA) reports ... Iraq has not complied with its obligations, the Council would meet immediately to evaluate the seriousness of the violations and draw the appropriate conclusions. France welcomes the fact that all ambiguity on this point and all elements of automaticity have disappeared from the resolution.”

Mexico: “Should Iraq fail to comply, the Council’s response will be defined on the basis of its own determination as to the existence of a threat to international peace and security. ... Similarly, this resolution also constitutes progress, as it eliminates the concept of automaticity in the use of force in response to a serious violation without the explicit agreement of the Council. We welcome the fact that the two-stage approach has been accepted. ... We reiterate the belief reflected in the agreed text that the possibility of the use of force is valid only as a last resort, with prior explicit authorization required from the Security Council.”

Ireland: “We have noted carefully and we welcome the assurances given by the sponsors that their purpose in presenting this resolution was to achieve disarmament through inspections, and not to establish a basis for the use of military force. ... As far as Ireland is concerned, it is for the Council to decide on any ensuing action.”

Russia: “As a result of intensive negotiations, the resolution just adopted contains no provisions for the automatic use of force. It is important that the resolution’s sponsors today officially confirmed in the Security Council that that is their understanding ... It is particularly important that — as many of my colleagues have said today — in the event of any kind of disagreement over disarmament matters, ... it is the Council that will consider the situation that has developed. ... Implementation of the resolution will require goodwill ... not yielding to the temptation of unilateral interpretation of the resolution’s provisions...”

Bulgaria: “This resolution is not a pretext for automatic recourse to the use of force. Rather, it attests to the international community’s determination to work tirelessly for Iraq’s disarmament through peaceful means. ... My country welcomes the fact that the resolution categorically reaffirms the centrality of the Security Council in our decision-making process.”

Syria: “Syria voted in favour of the resolution, having received reassurances from its sponsors, the United States of America and the United Kingdom, and from France and Russia through high-level contacts, that it would not be used as a pretext for striking against Iraq and does not constitute a basis for any automatic strikes against Iraq. The resolution should not be interpreted, through certain paragraphs, as authorizing any State to use force. It reaffirms the central role of the Security Council in addressing all phases of the Iraqi issue.”

Norway: “... we commit ourselves to using the Security Council to resolve a serious crisis and thus signal our determination to uphold the authority of the Organization and respect for international law. ... In case of Iraqi non-compliance, the resolution sets out a procedure whereby the Security Council will convene immediately in order to secure international peace and security.”

Singapore: “On 17 October, in the Security Council’s open debate on the situation between Iraq and Kuwait, Singapore spelled out comprehensively its position on this issue. We voted in favour of resolution 1441 (2002), as it is consistent with the positions that we have espoused in the Security Council.”

Columbia: “We insisted on preserving the central role of the Security Council, as clearly stipulated in paragraphs 4, 11 and 12. This resolution is not, nor could it be at this time, a resolution to authorize the use of force.”

Cameroon: “My country welcomes the clear statements just made by the sponsors, spelling out the fact that the resolution just adopted, on their initiative, does not contain traps or automaticity.”

U.N. Security Council meeting 4625 (SC/7534), resumption 3 (SC/7536), provisional verbatim record (U.N. Doc. S/PV.4625(Resumption3), October 17 2002, 3:10-7:15 p.m., 36 pages) {328kb.pdf, 219 kb doc, video} (S/PV.4625(Resumption3)/Corr.1, 1 page) {20kb.pdf, 39 kb doc}:

Cameroon: “It is clear that one more refusal by Iraq to comply with the Security Council’s requirements would be one refusal too many, because the Council would then have to take appropriate measures to ensure compliance with its decisions, in accordance with the provisions of Article 42.

I appeal to Council members to remain united, given the grave circumstances, and to show confidence in our body to resolve this issue, this crisis, and to do so in a consensual fashion.

I am pleased to note that during the consultations, all Council members, bar none, clearly assured me that they would undertake nothing against Iraq without the Council’s explicit approval. Therefore, I have good reason to remain particularly optimistic.

I now resume my functions as President of the Security Council.”

Guinea: “Our concerns, voiced during the past six weeks of intense Council negotiations, were indeed taken into account in this resolution ... and reaffirms the unity and the role of the Security Council as the guarantor of international peace and security.”

Mauritius: “Mauritius has voted in favour of this resolution, as it is the fruit of intense and constructive negotiations, which took on board all concerns raised by members of the Security Council. We are pleased to see the clear and unambiguous role of the Security Council in the maintenance and promotion of international peace and security through peaceful means.”

China: “China supports the two-stage approach. ... We are pleased to note that, after many rounds of consultations, the sponsors of the draft resolution accommodated our concerns, and the Council members have finally reached consensus. As the sponsors pointed out in their statements earlier, the purpose of the resolution is to achieve the disarmament of Iraq through effective inspections. The text no longer includes automaticity for authorizing the use of force. According to the resolution that has just been adopted, only upon receipt of a report by UNMOVIC and the IAEA on Iraq’s non-compliance and failure to cooperate fully in the implementation of the resolution, will the Security Council consider the situation and take a position.”

Mauritius {copy} was inhibited in what they could say, due to U.S. threats to punish them, if they oppose the U.S., and thereby violate their foreign aid agreements to not “undermine” “U.S. national security interests,” as the U.S. may chose to say.

This corrupt bribery and coercion the U.S. uses to bully impoverished, weak, helpless, dependent, nations. Long since, a criminal act under U.S. domestic law, a tool of criminal enterprises, a threat to international peace and security, and incompatible with honor, character, integrity, freedom, democracy, liberty, religion, morality, government.

The Mark, of a Great Satan.

That, and Hypocrisy, the constant companion, and the Mark, of a Bully and a Thug:

“The essence of civilization is that the strong have a duty to protect the weak.”

George W. Bush, “President Discusses Schiavo, WMD Commission Report (Executive Office Building, Room 450, March 31 2005, 11:31-11:38 a.m.), “Remarks Prior to a Briefing on the Findings of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction,” 41:13 Weekly Compilation of Presidential Documents 538-539 {7kb.txt, 43kb.pdf}.

And now we come to the punch line.

The U.S. and U.K. took no exception to these forceful assertions. And that’s because they themselves induced these very assertions, in the negotiations beforehand, by convincing all the other members that the U.S./U.K. agreed, the resolution means what the others said it means.

That was the deal they made, to induce the others to adopt the resolution.

Sitting there silently, in apparent agreement, while the others spoke, asserting their understanding, that the U.S./U.K. interpreted the resolution the same way the others did, knowing beforehand that’s what the others would say, because they had represented to the others they would accept that interpretation, to induce the others to vote for it, which they knew the others would do only in reliance upon that representation, the U.S./U.K. are estopped from later asserting the resolution means anything different.

This resolution was drafted by the U.S./U.K. They were in control of it. It was their initiative. It was their resolution. The resolution they initially drafted — rejected by the 13 other members — authorized them to attack Iraq, without a second resolution:

“The killer punch is in the last paragraph and threatens Iraq with war if it does not comply.”

Paul Reynolds, “Analysis: Draft 'a system of control'” (BBC News, October 3 2002).

“The Security Council ...

10. Decides that false statements or omissions in the declaration submitted by Iraq to the Council and failure by Iraq at any time to comply and cooperate fully in accordance with the provisions laid in this resolution, shall constitute a further material breach of Iraq’s obligations, and that such breach authorizes member states to use all necessary means to restore international peace and security in the area.”

US/UK October 2 draft security council resolution {copy, copy, quoted}.

Following three weeks of negotiations, the U.S./U.K. were forced to remove that clause, from their draft resolution, in order to induce the others to vote for it.

The U.S./U.K. omitted this clause when they tabled “in blue” their official, provisional, draft resolution (printed in blue ink) (U.N. Doc. S/2002/1198(Provisional), October 25 2002) {132kb.pdf}.

Their rejected clause stayed gone, from all their subsequent drafts, and from the final, adopted, resolution:

The November 5 U.S./U.K. revised, provisional, draft resolution {analysis, analysis, analysis}.

The November 7 U.S./U.K. official, final, draft resolution (U.N. Doc. S/2002/1198, November 7 2002) {58kb.pdf, 62 kb doc}.

The resolution, adopted unanimously by all 15 members of the Security Council (U.N. Doc. S/RES/1441, November 8 2002) {58kb.pdf, 58kb.pdf 58kb.pdf, 63 kb doc} (U.N. Press Release SC/7564).

On this record — documented by the documents and by extensive newspaper accounts of the 6 weeks of negotiations — the form of words Peter Goldsmith (U.K. Attorney General) chose to use, in his Written Answer to Parliament (his opinion), in the pen of an honest and competent legal adviser, could only say this, the exact opposite of what Peter Goldsmith said (changes in red):

“9. Resolution 1441 would in terms have provided that  a  no further decision of the Security Council to sanction force was required if that had been intended.”

But that sentence is presumptuous nonsense, whichever way you write it (not least because of its passive voice), demonstrating that no competent legal adviser would ever write it, if s/he were honest.

That sentence is a smoking gun, of a dishonest state of mind. The mind of an advocate, pretending to be an adviser. A purposeful, willful, decision, to masquerade an advocate’s argument to be an adviser’s opinion, to draw a veil over a proper legal analysis, which produces a result he did not desire.

And while this one sentence, in isolation, does not condemn him as a dishonest lawyer (because he could be confused or incompetent), the whole of what he did is plainly dishonest (in my mind), and that makes this, his sentence, prima facie dishonest too, part of the carefully crafted fabric of his opinion, his punch line.

And not merely dishonest.

Criminal.

The key ingredient, the kingpin, in a violent, prima facie criminal, conspiracy, condemning 100,000 innocent people to death, the crime against peace.

The plain facts of the negotiation are (1) the U.S. insisted that a second resolution not be mentioned, and (2) the 13 insisted that attacking without a second resolution not be mentioned. And the U.K. played lapdog to the U.S., their customary role.

Leaving an ambiguity.

Which the 13 promptly agreed among themselves to resolve, by oral agreement. A majority amply sufficient to pass the resolution. Unless the U.S./U.K. decided to veto their own resolution.

Under international law, this scenario has the same legal result as do the parol evidence rule, and estoppel, under domestic U.S./U.K. law:

The later U.S./U.K. assertion, they had legal authority under the resolution to attack Iraq without a second resolution, constitutes a “reservation” to the “treaty” among the parties (resolution). That later reservation they did not announce at the time the treaty was adopted (resolution). Accordingly, the other parties did not consent to that later reservation and it forms no part of their treaty (resolution).

“Consent” means what it says, and without it, there is no reservation:

“When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.”

Vienna Convention on the Law of Treaties {458kb.pdf} (May 23 1969), article 20(2), cited below.

It only takes 9 votes, of the 15 members, to adopt a Security Council resolution. 13 of those 15 agreed on what the resolution means. A contemporaneous oral agreement interpreting an ambiguity in the written resolution. A definitive interpretation incorporated into, and forming part of, that resolution, under the parol evidence rule.

When U.S./U.K. voted in favor of that resolution, knowing what 13 other countries said it means, that’s what it means. And that’s what they consented to, when they too voted for it, binding themselves to obey it.

They didn’t have to agree to it. They each had legal authority, to veto their own resolution, and stop the others from agreeing to it, if that’s what they wanted to do. They could have prevented a treaty, binding upon them, from arising.

And they didn’t.

The U.S. assertion, that it retained the right to attack is consistent with the requirement for a second resolution, and hence is not a “reservation” to it.

Numerous contemporaneous statements, of numerous U.S. officers, in the days before the vote, plainly confined their assertion to a case where the Security Council refused to vote for war in the face of undeniable evidence of a “material breach,” evidence ‘beyond a reasonable doubt.’

{Quotes to come.}

The others didn’t quibble with this, because they already decided to vote for war, in that event, and so, in their minds, that case would never arise. And if it did arise, they weren’t disputing the right the U.S. asserted, to attack on those facts.

What they cared about, they got. On all matters short of an undeniable case, they insisted decisions be taken in the Council. What is “material”? How hard is Saddam trying to do the hard task they’ve given him? Part of it being to account for things which may be humanly impossible to account for, down to the last ounce. Is he allowing unfettered access? These questions, and the like, they insisted on deciding as a group.

This is perfectly consistent with what the U.S. was talking about, who did not trust the 13 to do their duty, when confronted with an undeniable case.

They likewise did not trust the U.S. They wanted to bind the U.S./U.K., legally, from attacking Iraq for other reasons, for regime change only, a war-aim the U.S./U.K. did not present to the Council. Together with a war-plan, how to do it, by killing fewer Iraqis than Saddam was likely to kill, if they let him be, and how to govern the country in the aftermath, if Saddam didn’t resign in the process, watching a war-plan against him develop, inexorably, in public, with Arabic U.N. members volunteering a police force. The finger of destiny, slowly writing on his wall.

Peter Goldsmith asserts it to be his opinion, that the resolution required the U.S./U.K. merely to attend a meeting of the Security Council and listen to what the inspectors had to say, and they could then attack Iraq, and pay no mind to the rest of the Council.

{Quotes to come.}

This is another advocate argument masquerading as an adviser opinion.

This is not what the 13 members agreed to, when they resolved the ambiguity in their treaty. They agreed a second resolution was required to authorize an attack, except on facts covered by the narrow U.S. reservation: A refusal to vote for war in the face of an undeniable refusal by Saddam to cooperate.

This is 100% certain:

There never would be a resolution S/RES/1441 (November 8 2002) {58kb.pdf, 58kb.pdf 58kb.pdf, 63 kb doc} (SC/7564), worded as it was, had the U.S./U.K. asserted what they later asserted; had they refused, when it was adopted, to accept the interpretation they induced the others to accept, in good faith; had they not induced the others to consent, sitting silent, while the others stated their understanding of what it means. An understanding the U.S./U.K. well knew, before the meeting ever started.

The U.S./U.K. attacked Iraq in violation of the treaty (resolution) they agreed to obey, a prime facie crime against peace, by all those responsible for the decision to attack.

Chief among them, the legal advisers, who induced Members of Parliament to vote for the attack, and induced the Military to conduct the attack.

It’s perfectly proper for a legal advocate to argue these forceful statements do not form part of, and interpret, the resolution and do not constitute estoppel against any contrary interpretation, a “reservation” to a “treaty,” as I explain it.

But it is not proper for a legal adviser to do so. S/he has the legal and ethical duty to form and assert an honest opinion on this topic, and if s/he feels there is room for argument, she can say so (a caveat, an equivocation).

For a U.K. legal adviser — Peter Goldsmith (Attorney General), Harriet Harman Solicitor General, Foreign Office Legal Advisers, Christopher Greenwood (Queen’s Council) — to pretend these contemporaneous statements were never made, and have no legal bearing on what the resolution means, is either negligence or dishonesty (in my opinion).

And negligence, by this committee of experienced lawyers, most of them specialized in international law, is an exceedingly unlikely possibility.

Peter Goldsmith’s Written Answer to Parliament did not summarize his written opinion, as he now admits {48 kb doc}, but then concealed, and its then secret 13 pages of ifs, ands, and buts {693kb.pdf, copy, copy, copy, copy}.

On the basis of which deceit, and Tony Blair’s deceits about France and about WMD, the Commons voted against the amendment (“the case for war against Iraq has not yet been established”) (396/217), and the Lords too voted for war (Hansard, Commons, March 18 2003, Lords, March 17-18 2003).

Peter Goldsmith decided to conceal the opinion, he asserted, in secret, that Tony Blair’s Word is Law, because there never would be a vote in Parliament, for war, if he disclosed it. They couldn’t have stopped laughing, long enough to vote. In their scorn, that a lawyer would pretense a legal opinion, that black is white, if that’s what his client decreed.

He now says he changed his mind, during those 10 days, about his opinion. But talk is cheap, and he did not write, and did not sign his name to, a revised legal opinion, containing the caveats his ethical and legal duty both required him to state.

He omitted his caveats, and pretended to hold an unequivocal opinion, because the U.K. Military refused, to step foot in Iraq, without it. They did not wish to later find themselves on trial in the International Criminal Court, as they put it, sitting in the dock next to Saddam Hussein. They requested (March 12) and received (March 14) his opinion:

“It was two lines long and said that if there was a need to go to war, it would be legal. ... ‘It was unequivocal, black and white. There was no hedging at all,’ Lord Boyce said.”

(Michael Boyce, then Chief of the Defence Staff).

“ The substantive content of a letter dated 14 March 2003 from the Legal Secretary to the Law Officers to the Legal Adviser to the Ministry of Defence:

“I confirm that the Attorney General is satisfied that the proposed military action by the UK would be in accordance with national and international law.””

Legal Secretariat to the Law Officers, “Content of a letter dated 14/03/03 from the Legal Secretary to the Law Officers to the Legal Adviser at the Ministry of Defence” {19 kb doc}, first released May 25 2006.

The mixed question of fact and law, what is a “material breach,” was not “a judgment for the Prime Minister” alone, as Peter Goldsmith secretly asserted.

If a legal adviser is asked for an opinion, it then becomes the legal and ethical duty of the legal adviser to form an opinion, about both facts and law, and to express it. Which Tony Blair was then free to ignore.

But they both knew, the U.K. Military would not ignore it.

Nearly every lawyer in the world believes (as an honest adviser, not a partisan advocate), the Security Council reserved that judgment to itself.

A process, and judgment, Tony Blair, and his Attorney General, and his Military, were not legally free to ignore:

“ Hans Blix: It’s the security council that is party to the ceasefire, not the U.K. and U.S. individually, and therefore it is the council that has the ownership of the ceasefire ... that’s an absurdity, that here, a minority of the Council goes to war, to uphold the authority of the majority that is against it!”

Hans Blix, March 5 2004, March 20 2005 {transcript}.

According to the U.N. weapons inspectors at the time, Iraq was cooperating 110%, and with good results. They had unfettered access throughout the country. They inspected 100% of the sites given to them, by all intelligence agencies, including the Americans and the British. And found nothing. All the while unearthing and testing WMD Iraq destroyed in 1991, in compliance with the U.N. Security Council Resolutions. And preparing to interview all those Iraqis who participated in that destruction.

That’s about as far from a “material breach” as you can possibly get.

This means, few if any lawyers would likely believe (as adviser), they could prove (as advocate) a “material breach” to be even possible (less likely than not), much less probable (more likely than not). And certainly not beyond reasonable doubt, the standard of proof necessary (e.g. under domestic U.S. and U.K. law), before a legal adviser could assert an honest opinion, that no member of the Security Council could honestly and reasonably believe otherwise, warranting unilateral action, after the Council had first deliberated that issue.

This impossible legal and factual hurdle, staring him in the face, may explain why Peter Goldsmith refused himself to express an opinion on the topic, why he secretly changed his secret opinion to relieve Tony Blair of that impossible burden too, and why he decided to secretly assert, that Tony Blair’s Word is Law. Which he could then secretly endorse, pretending publicly, it was his legal opinion.

Not because he believed what Tony Blair said was true, but because Tony Blair said it. And that made it true. A deemed truth. A legal fiction.

A secret Führer Order:

“ “Restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. ... He could issue orders violating international law to the Germans.”

In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.”

The Justice Case, 3 N.M.T. at 1011, quoting expert testimony at 268-269 (Nuernberg Military Tribunal 3, Dec. 4 1947).

How Peter Goldsmith managed to convince himself of this nonsense, that Tony Blair is Divine, and can create facts and law from the Void, to suit his whimsy, and the world must bow down, and worship his Sacred Creation, the Holy Word, of our Lord, Tony Blair —

This does not appear in the record.

Not least, because he did not write a second opinion, explaining why he changed his original written opinion (March 7 2003) {693kb.pdf, copy, copy, copy, copy}, a carefully guarded secret until April 28 2005.

Update:Enforcement Notice, to the Legal Secretariat to the Law Officers” {108kb.pdf} (Information Commissioner’s Office, May 22 2006). Cabinet Office and Legal Secretariat to the Law Officers, “Legality of Military Action in Iraq: Disclosure Statement” (Information Commissioner’s Office, May 22 2006) {97kb.pdf}. Annex A (March 7 2003 AG opinion) {697kb.pdf}. Annex B (March 17 2003 AG written answer) {8.4kb.pdf}. Annex C (March 17 2003 FCO opinion) {15kb.pdf}. {All documents, image only: 403kb.pdf}.

Peter Goldsmith refuses to explain himself.

For good reason.

Because he cannot explain himself.

His opinion is lawless.

It’s unlikely, Peter Goldsmith, and his committee of lawyers, are honest lawyers who made a mistake, incompetent, negligent, unqualified, hopelessly confused, doing the best they can, crippled by their talent, inadequate to their task, unaware of their own ignorance.

It’s most likely, he, and they, are common liars.

Squirming to please their master, any way they can. Saddam Sycophants. And make it look as good as they can, by stubbornly refusing to explain themselves. And seeking refuge, behind their fancy titles, the British are fond of, to endow rogues with respectability:

Lord Goldsmith. He’s got a whole lot of equally unsavory characters, to keep him company, in prison, where he belongs, he and the rest of his committee of lawyers. With the blood of 100,000 innocent people on their hands.

Unlike the U.S., in the U.K. it’s no crime to lie to Parliament.

Peter Goldsmith decided to deceive Parliament, in his role as a politician-advocate, not a legal adviser. A subtle distinction without ethical merit. And, without saying so. Exemplifying the hopeless morass of conflicts of interests which mark the U.K. parliamentary system of government. A member of both, he can not ethically be a lawyer for both Parliament and the Government too. Their interests do not coincide.

Exactly as in this very brief.

Will Taft cannot ethically pretend to be State Department Legal Adviser and an advocate for the U.S. government at the same time. Ethically, he must pick one or the other hat to wear. And if he pretends to wear both at the same time, he is a common liar, knowingly and willfully endeavoring to deceive his various audiences.

It’s little wonder, the Deputy Legal Adviser to the U.K. Foreign Office wanted nothing further to do with these people. She resigned, in anger, sorrow, disgust (March 18 2003) {copy}. Elizabeth Wilmshurst. She repudiated the sudden flip-flop by her office (March 17 2003) {625kb.pdf, copy}, and held fast to her view, this was a criminal war of aggression, a violent crime, a criminal act by her office, to join a violent criminal conspiracy, she wanted no part of, the crime against peace.

Proving after all, when all’s said and done, there is indeed such a thing, as an honest and honorable lawyer, and legal adviser, and government official.

And, how simple it is, to weed them out of your organization. And consolidate a cadre, of pseudo legal advisers, who obey orders, instead of express the honest opinion, their ethical duty, and the legal duty of the office they hold, both demand.

Pseudo legal advisers, like William Howard Taft IV, and Abraham D. Sofaer (below).

By contrast, the Justice Department lawyers in this lawsuit are acting — not as an adviser, but — as an advocate.

The ethical duty of a legal “advocate” is very different: Precisely, to not express an honest, candid, reasoned, opinion. But, instead, to advance an argument (which s/he may not believe) on behalf of a client to somebody else, in this case, the court.

And this is why people hate lawyers (and politicians).

You’re rarely sure, when a lawyer (or politician) is talking, if s/he actually believes what s/he’s saying. Or, instead, if s/he’s merely giving voice to an argument s/he may not believe, or indeed does not believe.

And the best lawyer-advocates obfuscate this distinction, and thereby lend their personal prestige to an argument, asserting mere argument and opinion as if it were fact, and embellishing (when rarely challenged), as if were an honestly held belief or opinion. And they do this for money, naturally. Because they are better talkers than their client, and appear to be free of the added bias the client has in his own issues.

And, of course (complicating perceptions), there are happy occasions, when an advocate does actually believe what s/he’s saying.

And unhappy occasions, when a legal adviser is secretly speaking as an advocate, but the audience believes s/he’s speaking as an adviser.

This is the deceit of this brief.

A false illusion, created by falsely identifying Will Taft as “Legal Adviser.” “Falsely,” because he is not addressing the Court in that capacity, in this brief, but instead as an advocate.

And this we often see, when the State Department Legal Adviser testifies to Congress (not his client). Congress thinks they’re hearing an honest, candid, reasoned, opinion (because that’s what his title is), but the Legal Adviser is actually speaking as an advocate (without saying so), advancing an argument to Congress (disguised as his opinion), on behalf of his State Department client, which may not be his actual opinion, with many subtleties omitted, and based on concealed assumed facts (which he may not believe).

Why do people hate lawyers?

Sidebar:

Iran Air Flight 655

The U.S. ambush of Iran Air Flight 655 is a vivid example of this deceit, by Abraham D. Sofaer, the then State Department Legal Adviser, who testified to Congress about it (August 4 1988). I haven’t yet posted his testimony but, in his defense, I do recollect, he eventually mentioned in passing (but not in his deceitful prepared statement), he was instructed what facts to assume, and even instructed on what legal conclusions to draw from those facts, and ordered to formulate his opinion based on those instructions. (Though he didn’t elaborate as frankly as I’ve just done).

This was a subtile hint to Congress, that he was speaking as an advocate, not an adviser. A subtlety which escaped the notice of his audience who, in any event, didn’t want to hear his honest opinion, even if this U.S. government lawyer had bothered to form one, and had been willing to disclose what it was.

As an adviser, his duty was to reject assumed facts, and assumed legal characterization of those facts, if he didn’t believe them, and give his honest opinion based on the facts as he believed them to be, with comment on how variations in the facts might affect his opinion.

Three “facts,” he was doubtless instructed to assume, he wisely omitted from his statement to Congress. Criminal lies, voiced variously by Ronald W. Reagan, George H.W. Bush, Richard S. Williamson, and others: The Vincennes was in international waters, its helicopter was in international airspace, and merchant ships requested assistance.

These three foundation lies would land Mr. Sofaer in prison, in a very big hurry, were there ever to be an honest U.S. Attorney General, to prosecute him. An unlikely prospect, but nevertheless a risk, about an unknown future, Mr. Sofaer did not chance to hazard.

The omission of these three prominent assertions, from his statement, is persuasive evidence, that Mr. Sofaer knew these were lies, understood the legal significance of the truth, and was hence himself dishonest, when he decided to assert a unequivocal opinion to Congress (that the U.S. was not at fault). A smoking gun, of criminal intent. A criminal liar.

And, if so, that makes him member of another prima facie criminal enterprise, the felony-murder, or manslaughter, of the mostly American victims of Pan Am 103 (December 21 1988, 270 victims), a promised, foreseeable, apparent, international countermeasure to the first criminal enterprise, the conspiracy of criminal liars, who decided to lie, and falsely deny responsibility, on behalf of the United States, thereupon legalizing an eye for an eye (a species of self-defense).

It is the ethical duty of a legal adviser to not obey orders. From anybody. But to form, and express, an honest opinion, on honest facts, and to reject instructions about fictitious facts.

But in the U.S. government — like all corrupt institutions — if you don’t obey orders, you don’t long have a job.

And this is why people of integrity rarely appear, in U.S. government jobs, which matter to dark forces. And when they do appear, they don’t linger long. And ditto the U.S. government’s many puppet governments, and well-schooled, like-minded, allies.

Like Iraq.

And the United Kingdom of Great Britain and Northern Ireland.

______________________

I have a series of questions about this.

Does William Howard Taft IV know, that some lawyer put his name on this brief?

This happened to me once. A lawyer put my name on a Registration Statement, without my knowledge, and filed it with the Securities and Exchange Commission, to register a stock offering in a company I never heard of. (I used to write prospectuses, for stock offerings, in another life, in a prestigious law firm I was a partner in).

This is a very audacious deceit, a likely violation of Rule 11 of the Federal Rules of Civil Procedure, warranting punishment, of the Justice Department lawyers, by the Court. Not to mention bloodshed, on the floor of the Justice Department, when Will Taft comes to call.

And for these reasons, I doubt it’s the case. This would be a monumental scandal, indeed.

So why didn’t Mr. Taft sign his name to this brief?

If he endorses what it says.

And in asking the question, we have the likely answer.

Will Taft can’t stomach some of what’s in this brief.

Such as:

  The assertion in footnote 2, that the Church Committee “had before it all relevant documents.”

This is argument, masquerading as fact, which is ethical for an advocate to advance.

But it’s unethical for an adviser to endorse (in my opinion). Unless s/he’s an ignoramus, unacquainted with the actual facts, in which case s/he would be negligent (in my opinion) for expressing any opinion on the topic, and not disclosing that ignorance.

And, to top it all off, nobody knows what the Committee had before it. And what the CIA, and DIA, redacted from their view. And obfuscated, by withholding other documents, providing context, detail, and understanding. And what the Committee staff overlooked, disregarded, didn’t understand, couldn’t evaluate, in the haste and pressure of writing their report. Even those staff members alive today can’t accurately remember that much detail, and what they didn’t see. And nobody will ever know, unless this case proceeds, and the court orders those secret files released to the plaintiffs.

And, we don’t know whether the committee, and/or its staff, was dishonest, and covered up the extent of U.S. government wrongdoing, and minimized it.

We do know, they lied (or were lied to) about the U.S. felony-murder of Diem and his brother, in Vietnam:

“The details of Diem’s and Nhu’s deaths are not known. None of the informed sources give any indication of direct or indirect involvement of the United States.”

And we know, they asserted dishonest opinions, about the felony-murder of René Schneider, purporting to exonerate U.S. officials in this very case, not warranted by the evidence they did disclose, facts which would put those same officials in prison, in a U.S. criminal trial.

And we know today, there are many documents they did not have before them (a fact). Which are relevant (an argument). And, conversely, the Committee had before it documents which the U.S. Government did not release, three decades later, when they falsely asserted they released all relevant documents. Such as, the “not a nut or bolt” telex, for example.

Finally, those documents which have been released are heavily redacted. Were the documents before the committee also redacted? A court has the authority to unredact. And, if they’re like other redacted documents, which courts have unredacted, the purpose of many redactions is to conceal criminal enterprises (including criminal lies to Congress). And, if you want to see some, side by side, see Seth Rosenfeld, “Reagan, Hoover and the UC Red Scare: Secret FBI files show how the Bureau’s covert campaign to disrupt the Free Speech Movement and topple UC President Clark Kerr helped to launch the political career of an actor named Ronald Reagan” (San Francisco Chronicle, June 9 2002, Special Report).

  The unbelievably foolish commentary in footnote 9 about jus cogens, which no State Department Legal Adviser could possibly endorse (as an honest opinion).

  The “actionable” argument: That it’s OK for Henry Kissinger to murder René Schneider, because a U.S. federal court doesn’t have jurisdiction to try him for the crime, as this brief advocates (erroneously, in my opinion). Which no legal adviser could endorse, even if the jurisdiction assertion were true, because it’s not a legal excuse for murder.

  And other arguments, which are legal for an advocate to make, because they have some plausible merit, but are illegal (i.e. unethical) for an adviser to endorse, as an honest, reasoned, candid, opinion. If s/he doesn’t actually believe it.

This is a very simple matter to straighten out.

Let William Howard Taft IV
sign his name to this brief
.

If he endorses it.

And lay down his heavy ethical burden, as a legal “adviser,” and become an “advocate,” in this case, by entering an appearance as a lawyer for the government, and a written, signed, consent to be named as an “advocate,” who endorses this brief.

And remove his title from this brief.

(Legal Adviser, Department of State).

Because he is not addressing the Court in that capacity but, instead, as an “advocate,” not an “adviser.”

So we can all know, he speaks as a silver-tongued advocate, advancing arguments he may not believe. And not as a legal adviser, expressing an honest, reasoned, candid, opinion.

Then we’ll know where we stand.

Though this would be a blow to Mr. Kissinger, who trades in illusions, misrepresentations, and ambiguities. That people are what they aren’t. Who speak with authority they don’t have. Trading on other peoples’ reputations. Obfuscating reality.

Henry Kissinger’s modus operandi.

A brief in a lawsuit has more than one audience.

Now that Will Taft has agreed, to join their corrupt gang, and lend his name to this brief, as “Legal Adviser,” the dark forces, who engineered this scam, have got what they wanted:

Any statement in this partisan brief can now be attributed to Will Taft, in his capacity as Legal Adviser.

And you can be sure, the memos have already been written, to the many criminal enterprises inside the U.S. government, quoting and summarizing this brief.

All of it: “The opinion of Will Taft, Legal Adviser.”

And you can be sure too, the CIA has already written many scripts, for Larry King Live appearances, by William D. Rogers, and his younger ilk, the active members of this enterprise. Depending on what softball question Larry lobs their way (agreed in advance with his producers):

Well, Larry, even the State Department Legal Adviser has studied this.

And you know, he’s no partisan advocate, like some think the Justice Department lawyers are.

The State Department Legal Adviser is a real lawyer, who is required to express an honest, carefully considered, legal opinion. And he often tells the government what it doesn’t want to hear.

Even he agrees, that any U.S. government official who mistakenly gets caught in some activity, a judge down the road might disagree with—

Even the State Department Legal Adviser agrees, government employees and contractors have legal immunity, and nothing to worry about.

The U.S. government, and U.S. judges too, are required to protect them.

Because after all, they only did what they were told to do.

As any patriotic American would.

And, about a year from now, we’ll likely see more, of the poison fruit, of this carefully planted seed.

When the designated talker, of the three-judge panel, of the United States Court of Appeals for the District of Columbia Circuit, delivers their opinion, in this appeal.

Deciding, that the U.S. government is free to torture and murder foreigners, any time they please. If that’s what the President, or his independent operators, want to do.

And it’s no business, of his fellow officers of the United States of America: Federal Judges.

Their duty, is merely to ward-off attacks, and thereby ensure, facilitate, aid and abet, that U.S. government criminal enterprises are free to operate, whenever, wherever, and however, the many enterprise commanders, of the American Empire, see fit.

And when s/he explains why, you can bet your bottom dollar, that panel-talker will carefully mention, in passing, that even the Legal Adviser of the U.S. Department of State agrees, who felt moved, to join in the brief for the government, and express his honest, candid, reasoned, opinion, on this important matter.

Masterpiece Theatre.

A subliminal force, shaping the unconscious opinion of the vast public, who merely take note in passing. And rammed down the throats, of secret audiences who matter, by secret memos. And by more secret legal opinions, from the U.S. Department of Justice.

This truly deserves an award.

In the Deceit Oscars.

______________________

Misrepresenting an “advocate” to be an “adviser” is a gross deceit.

If William Howard Taft IV will not sign his name to this brief, and will not enter his appearance as an “advocate” for the government, then

Let the name of William Howard Taft IV
be stricken from this brief.

As a person with no authority, to address the court, in this case.

For a commentary, on the distinction between a legal adviser and a legal advocate, see David J. Luban (Professor of Law and Philosophy, Georgetown University Law Center, Washington D.C.), “Selling Indulgences: The unmistakable parallel between Lynne Stewart and the president’s torture lawyers” (Slate, February 14 2005).

Charles Judson Harwood Jr.
March 1-5, April 1-7, 29, 2005

______________________


{cover:}

Statutory Addendum

______________________


{p.1}

A. The Alien Tort Statute, 28 U.S.C. § 1350, provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

B. The Torture Victim Protection Act, 28 U.S.C. § 1350 note:

§ 1 This Act may be cited as the “Torture Victim Protection Act of 1991.”

§ 2 Establishment of civil action.

(a) Liability.—An individual who, under actual or apparent authority, or color of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

(b) Exhaustion of remedies.—A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.

(c) Statute of limitations.—No action shall be maintained under this section unless it is commenced within 10 years after the cause of action arose.

§ 3. Definitions.

(a) Extrajudicial killing.—For the purposes of this Act, the term “extrajudicial killing” means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

(b) Torture.—For the purposes of this Act— {p.2}

(1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and

(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

C. 28 U.S.C. § 2679 provides:

(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

(b) (1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred. {p.3}

(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government—

(A) which is brought for a violation of the Constitution of the United States, or

(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.

(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.

(d) (1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

(3) In the event that the Attorney General has refused to certify scope {p.4} of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the action or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pending. If, in considering the petition, the district court determines that the employee was not acting within the scope of his office or employment, the action or proceeding shall be remanded to the State court.

(4) Upon certification, any action or proceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.

(5) Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if—

(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and

(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.

(e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect.

Footnotes

Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  The original complaint also asserted claims against Richard Helms, former Director of the Central Intelligence Agency. After he passed away, plaintiffs later removed Mr. Helms as a defendant. App. 167, 202 n.2.

 2  While for the purposes of this appeal, this Court must, as the district court did, presume the accuracy of plaintiffs’ factual allegations, it should be noted that many of the allegations are contrary to both the historical record and the findings of a Select Committee of the United States Senate. ¶

The “Church Committee” had before it all relevant documents regarding this event, and found that ¶

“United States officials offered encouragement to the Chilean dissidents who plotted the kidnapping of General René Schneider, but American officials did not desire or encourage Schneider’s death.” ¶

Committee on Alleged Assassination Plots Involving Foreign Leaders: An Interim Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, United States Senate, S. Rep. No. 94-465, at 256 (1975) (“Church Committee Report”) {November 20 1975, SuDoc: 94-1:S.RP.465, Serial Set: 13098-8, CIS: 75 S963-1, LCCN: 75603538, DL, WorldCat}. ¶

The Committee also found that ¶

“[a]lthough the CIA continued to support coup plotters up to Schneider’s shooting, the record indicates that the CIA had withdrawn active support of the group which carried out the actual kidnap attempt on October 22, which resulted in Schneider’s death.” ¶

Id. at 5. ¶

The Church Committee Report found that in a meeting held on October 15, 1970, seven days prior to the attempted kidnapping that led to General Schneider’s death, Dr. Kissinger and other officials decided to abandon, at least temporarily, any support or encouragement of a coup led by retired Chilean General Roberto Viaux. Id. at 242. ¶

The Committee’s report continued that ¶

“it does not appear that any of the equipment supplied by the CIA to coup plotters in Chile was used in the kidnapping.” ¶

Id. at 5. ¶

Finally, the Committee concluded that ¶

“[t]here is no evidence of a plan to kill Schneider or that United States officials specifically anticipated that Schneider would be shot during the abduction.” ¶

Id.


Query:  “No evidence”?

Looks like the CIA successfully deceived the Committee about this too. Or did the Committee decide to deceive Congress and the public?:

“ 10. {Name redacted} stated that ... abduction attempt might lead to bloodshed. Schneider’s accidental death would rally Army firmly behind flag of Constitutionalism. ...

14. {Name redacted} repeatedly stressed that armed forces will preserve cohesion only as long as they can maintain constitutional stance. Once that stance abandoned, all Hell would break loose, with soldiers fighting soldiers. Was that desirable?

CoS replied, U.S.G. did not really care as long as resulting chaos denied Allende the Presidency.”

Henry Hecksher (CIA Chief of Station, U.S. Embassy, Santiago Chile) to CIA Headquarters, Langley Virginia, telex, Oct. 9 1970 {374kb.pdf}CJHjr


 3  See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 796 (D.C. Cir. 1984) (Edwards, J., concurring), cert. denied, 470 U.S. 1003 (1985); id. at 803 (Bork, J., concurring).

 4  Congress also preserved personal liability in so-called “Bivens actions,” i.e., suits against government officials in an individual capacity to recover money damages ¶

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

28 U.S.C. § 2679(b)(2)(A). ¶

Plaintiffs, however, have made no such claim in this case.

 5  Alvarez-Machain v. United States, 331 F.3d 604, 631-32 (9th Cir. 2003) (en banc) (“[W]e agree with the three-judge panel’s conclusion that the exemption does not apply here, and that the United States was properly substituted for the individual DEA agents.”)

 6  For purposes of the Westfall Act, scope of employment is determined by reference to local respondeat superior law. See Haddon, 68 F.3d at 1423 {63kb.html}.

 7  “Special activities” are defined as ¶

“activities in support of national foreign policy objectives * * * , other than the collection and production of intelligence and related support functions, designed to further official United States programs and policies abroad which are planned and executed so that the role of the United States Government is not apparent or publicly acknowledged.” ¶

Ibid. § 2(c) {1976}. See also 50 U.S.C. § 402(h)(1)(2)(D) {1996} (making the Assistant to the President for National Security Affairs a member of the National Security Council’s Committee on Foreign Intelligence).

 8  There is substantial room for doubt that the Chilean coup plotters acted under color of their own nation’s law. Cf. Polk County v. Dodson, 454 U.S. 312, 318 (1981) (public defenders do not act under color of law because they act independent of state control).


Query:  “State control”?

Let’s see if I understand what you’re saying.

The Commander of the Santiago Garrison of the Chile Army (General Camilo Valenzuela) was not acting under color of Chile law when he organized, masterminded, commanded, and implemented the kidnap/murder of René Schneider, bought and paid-for by the CIA and DIA, who both said, they acted on orders of Henry Kissinger.

But Henry Kissinger was acting under color of U.S. law when he allowed his violent criminal enterprise to continue, in direct violation of the U.S. Constitution, U.S. federal and state criminal statutes, and an express order from U.S. President Richard Nixon (his employer) to stop it. An order Kissinger said (in testimony and in writing) he did indeed receive, in person, direct from Richard Nixon’s own lips.

I’m confused.

And, in any event, felony-murder is OK?

If you either do (Kissinger), or do not (Valenzuela), act for some government? Under “state control”?

I’m doubly confused.

And it’s easy to get confused, when you’re talking — not about the crime, but — about the court’s jurisdiction to adjudicate the crime, or a complaint for damages.

And this nonsense, and runaround, and sophistry, is what you get, in a violent, criminal, terrorist, rogue, state. Which will not be held to account, under the rule of law, for its crimes and intentional torts.

And, to effectuate its escape from justice, denies its courts jurisdiction, to sit in judgment upon them.

A lesson and technique Adolph Hitler learned fast, when he adopted this exact same legal structure, for his 12-year reign, over his 1000-year Third Reich.

And just as his lawbreaking, criminal, regime came to end, so too will its criminal clone, the United States of America.

One day, one way or another, that bell will ring.

Charles Judson Harwood Jr.
Tennessee Bar 1967
(BPR No. 005483)

A 13th generation American:
Jamestown Virginia, 1620,
Martin's Hundred,
William Harwood, Governor.

______________________


The Criminal Tort Doctrine

______________________


“ The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime.”

Seal: Nuernberg Military Tribunals

The Justice Case, 3 N.M.T. 1, 954-1201 (opinion, judgment, sentences), at 984 (U.S. Military Tribunal 3, Nürnberg Germany, trial, 5 March-October 18, judgment, December 4, 1947), volume 3 (1951, 31+1236 pages), Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (“Nuernberg, October 1946–April 1949”) (15 volumes, U.S. GPO, Washington D.C., 1949-1953) (“the green series”) {SuDoc: D 102.8, ditto, LCCN: 49045929, 97071903, OCLC: 12799641, UC, WorldCat}, volume 3 {24.69mb.pdf, source}.

______________________

What’s missing, from this lawsuit, is an amicus brief.

Not on behalf of René Schneider’s family.

Not on behalf of the U.S. government.

On behalf of U.S. federal judges.

What is the personal, criminal, responsibility, of U.S. federal judges, for dismissing this lawsuit?

And others like it.

One of the topics of the Justice Case, at Nürnberg Germany. With a load of lawyers and judges, as defendants. And there were other such criminal trials, besides that one, dealing with the same issues.

There’re three main principles from that case.

______________________

If the criminal regime has so thoroughly tied a judge’s hands, there is absolutely nothing s/he can do — to prevent a crime by the regime, or to hold the regime (and/or its officials) accountable for it, and thereby deter future such crimes — by the orders s/he has authority to enter, in lawsuits, then:

S/he yet has a voice, to speak.

And an audience, to speak to.

S/he’s influential.

Expert, in law.

Expert, in government.

Expert, in what’s unfolding, in the courtroom.

It’s no disrespect, to be disrespectful, to criminals.

To the contrary. It’s disrespectful, to hold your tongue, when you have a voice to speak, and an audience to speak to, for the victims. And to alert the public, to criminal enterprises. And to faults, in their government institutions.

A Judge who speaks out, explains what s/he sees, and what’s wrong with it, that Judge exhibits powerful evidence, that s/he does not harbor criminal intent.

And a Judge who does not speak out, when prompted to do so, raises suspicion, and exhibits evidence, that s/he favors what s/he sees. And wants to support it, assist it, aid and abet it. And if not “favors,” then willingly acquiesces in it. The same difference, in the criminal law of intent.

And this is one big difference, between the United States of America, and Nazi Germany.

An important difference.

There, it was a crime, to criticize the government, or its officials, or their policies. One of the tools of the criminal enterprise. A law rammed home to the public, by a steady dribble of news reports, in newspapers, and on the radio, of criminal sentences, handed out to offenders.

A crime, with many convictions, which the U.S. government itself, and many U.S. states also adopted, during the first world war. See Jim Robbins, “Pardons Granted 88 Years After Crimes of Sedition” (New York Times, May 3 2006): “The sedition law, which made it a crime to say or publish anything ‘disloyal, profane, violent, scurrilous, contemptuous or abusive’ about the government, soldiers or the American flag, was unanimously passed by the Legislature in February 1918 {Montana}. It expired when the war ended. ... Twenty-seven states had sedition laws during World War I. Montana’s became the template for a federal law, enacted by Congress later in 1918.”

This shut down all political conversation in the Germany. 100% in public, and nearly so in private.

And put judges, in that regime, in a dilemma, not to mention personal jeopardy. Should they think to pen any criticism, in a legal opinion. Or discuss the issue, with their fellow judges. Or permit legal argument, challenging regime laws, in a lawsuit.

The same dilemma, faced by members of the U.S. Military today. Because the U.S. Military has copied this law from Adolph Hitler, making it a criminal offense for any U.S. solider to do the same. And for the same reason Adolph Hitler adopted this law. To be free to wage crimes, in secret from the public. When needs be, when the ends justify the means. Free of pressure, discord, dissent, dispute — first among the soldiers themselves, and later a wider public audience, tipped-off by a soldier — which free speech empowers, a check on crimes by the government.

______________________

As for the other principles, U.S. Judges are also in a slightly different position from their Nazi brethren. And this is why they need a brief, for their own benefit.

Here’s a brief:

What’s a U.S. Judge to do, when the President and Congress team-up together, to wage crimes, against foreigners?

And this has happened often, in U.S. history. Very often. But, naturally, it’s not advertised as such. The public wouldn’t stomach it. Open talk about it. Though, like citizens of the Nazi regime, many are happy it’s going on. It suits their ideologies. And their pocketbook. And their biased opinion, they’ve been inflamed to form, by U.S. government liars. They’re happy to be lied to. They don’t want to know.

And for this reason, the role of Congress is usually to also acquiesce, quietly, in backroom deals, and conversations, in their private passages, cloakrooms, and offices. To approve the money, no questions asked. In service of their ideologies: “Amerika über Alles,” “Death to Socialists, Muslims, Family-Planners” (and the like). And, in trade for filthily lucre: federal grants, and contracts, and deals for their wealthy patrons.

But this is not the usual situation.

Usually, the CIA and Defense Department, and other government agencies, simply take the money they’ve already got, appropriated to them by Congress, for legitimate purposes, and use it to pay for their criminal enterprises, and lie in their accounting records, what the money was used for.

Yet, when word of their activities begins to leak out, what do Members of Congress do?

The most of them, they close their eyes, their ears, their mouths, to the evidence, which citizens clamor and clamber to confront them with.

Members of Congress rarely put their shoulder to the wheel, and actively, and openly, help the President spill blood, in criminal enterprises.

Instead, to help him, they decide to not do their legal duty. Those Members, the Committee Chairmen, with authority to prevent it (the King’s Men). With authority to not hold public hearings, to block and prevent them, and to not take legal depositions, and to not investigate and expose these crimes, honestly.

The only tool, in the U.S. democracy, to investigate and expose crimes, and other unlawful enterprises, by the U.S. government.

Apart from lawsuits.

The original, bedrock, foundation, indispensable, institution of freedom and liberty and democracy.

From the beginning of Time.

Where citizens require nobody’s permission.

To assert their rights.

Discover the wrongs done to them.

And hold those responsible, accountable.

Unlike Nazi judges, U.S. Judges are not legally obliged to obey orders of the U.S. President. Indeed, the terms of their legal office, as equal officers of the United States of America, prohibit it. Until that day arrives, when the U.S. President suspends the Constitution, and rules by decree. Following the lead of Adolph Hitler.

And so, the first legal tool, in the hands of U.S. Judges, to stand against these criminal enterprises, is the Bivens principle. That inherent in the office they occupy, is the authority, to enter orders in lawsuits, even if those orders are not expressly authorized by Congress. Or, indeed, contravene some Act of Congress, signed by the President, designed to prevent them from entering those very orders.

Because they’ve got their job to do too, just like the President does in his branch, and Congress does in their branch.

It’s the job of U.S. federal judges to adjudicate legal disputes, in lawsuits. And, in the process, to say what the laws mean, including the U.S. Constitution.

But it’s not the job of U.S. federal judges to facilitate criminal enterprises.

By refusing to adjudicate legal disputes credibly alleging criminal torts by the government, and its officials.

Their duty is to hold criminals to account.

And the government they work for.

Because, if they don’t, they thereby, themselves, participate in the next round of crime.

By all those government officials, snickering from the sidelines, paying close attention, to what they don’t do.

Just like the Nazis snickered.

Every time somebody said:

“You can’t do that. It’s illegal.”

In the words of the court, enforcing some law (Westfall Act, Federal Torts Claims Act exceptions), or judicial doctrine (sovereign immunity, political question), which says you can’t hold government officials to account, for their criminal torts, and the complicit government they work for, which ordered them to do it, incited them to do it, aided and abetted them to do it, conspired with them to do it:

amounts to complicity in crime.

It’s not a crime, by the Judge, to wave farewell and good luck, to an alleged criminal, dragged into court by victims, filing a complaint for damages.

That’s because, the Judge does not have specific intent (let’s assume) to protect the alleged criminal, and the government that defendant works for. Instead, the Judge lets the defendant go, because s/he believes (let’s assume), that’s what the law requires.

But it is complicity, nonetheless.

Because, specific intent or no, the Judge does protect the alleged criminal, and the complicit government, from accountability for the alleged criminal tort. And ditto alleged intentional tortfeasors and their alleged intentional torts, which they did on purpose, not through unintentional negligence, an intentionally unlawful enterprise, though it may not be proved criminal, beyond reasonable doubt.

But it’s not the crime before the court I have in mind.

I have another crime in mind.

The next crime.

If you do this, time and again, dismiss lawsuits against the government and its officials, pretty soon you begin to realize, the significance of what you’re doing.

You’ve become part of something.

A government criminal enterprise.

Or, ditto, an intentionally unlawful government enterprise.

Which depends upon you.

Because, if you hold to account, the participants in a government criminal enterprise, and the government, and publicize the affairs of the enterprise, empower victims, with subpoenas, to compel testimony and documents —

If you do that, then all the actors, in all the other government criminal enterprises, will flee, and stop what they’re doing.

The public will become furious, at their politicians, and their leaders, who permitted this. And throw them out of office, at the next opportunity. (About half the public, maybe, the other half, I suppose, being inattentive, indifferent, or in favor of it).

And clamor for the actors in the enterprise, to be fired from their jobs, and prosecuted for their crimes. And in a real court, a court their organization can’t control.

U.S. government officials will not run that risk, destroy their lives and careers, just to obey orders of some criminal enterprise, they didn’t even agree with in the first place, the most of them.

If you stop playing along, dismissing these lawsuits, you will empower government officials, to say:

“No. I won’t do that.”

And they won’t lose their jobs, or be transferred, demoted, retired, for refusing to obey orders, to play along. Their bosses will lose their jobs instead, or be transferred, demoted, retired, prosecuted, should they be so bold, to initiate criminal enterprises. And the government can be cleansed of criminal enterprises, and the villains who command them. “Patriots,” as some see themselves (as Nazi villains saw themselves), but villains nonetheless.

Then, how will government criminal enterprises get their work done?

They depend on you.

To play your role.

To stay out of their business.

And if you don’t play along, and do your part, you’ll put them out of business.

Precisely so.

And that’s why, enforcing this legal system — exonerating alleged criminals and intentional tortfeasors, by dismissing lawsuits against the government and its officials — is itself a criminal enterprise.

Aiding and abetting, by U.S. federal judges, equally complicit, as accessories, with all other members of the criminal enterprise, under some laws:

“ Section 4. A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense ...

Section 2. ... (b) A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a high probability that he is doing so.”

Indiana Code, § 35-41-2-4, § 35-41-2-2(b). Accord: Wyoming, § 6-1-201 (“knowingly aids or abets”).

Criminal facilitation, by U.S. federal judges, under other laws:

“ A person is guilty of criminal facilitation in the second degree when, believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony.”

New York Penal Code, § 115.05. Accord: Arizona, § 13-1004 (“knowingly provides the other person with means or opportunity for the commission of the offense”); Kentucky, § 506.080 (“knowingly provides such person with means or opportunity for the commission of the crime”); North Dakota, § 12.1-06-02 (“knowingly provides substantial assistance to a person intending to commit a felony”); Tennessee, § 39-11-403 (“knowingly furnishes substantial assistance in the commission of the felony”); Guam, § 9-4.65 (“knowingly furnishes substantial assistance to him”); United States, 18 U.S.C. § 2339A (“provides material support or resources {e.g. “expert advice or assistance”} ... knowing or intending that they are to be used in preparation for, or in carrying out, a violation of 35 different code sections, including foreign kidnap/murder). And see Model Penal Code § 206, commentary (American Law Institute) {LCClass: KF9219, ditto, ditto, LCCNs: 80050699, 84051700}.

A judicial criminal enterprise.

Which executive criminal enterprises depend upon, for their success.

There’s no greater aid, means, opportunity, substantial assistance, expert advice or assistance, to the commission of a felony, than the promise of immunity from a court.

A court. The very one government institution government criminals fear most. The most powerful deterrent, the biggest obstacle, to a government criminal enterprise. Far more so, than to ordinary criminals, in the private sector, tempted by personal riches, to overcome their fears.

Government criminals don’t fear criminal prosecution, because they have secret assurance from their complicit government lawyers, they will not be prosecuted, if they obey orders.

They need nothing from Congress. The executive branch provides them everything they need, money, transport, communications, armed muscle, all the tools of their trade.

Everything but one thing.

Protection.

They, and their masters, have no control over civil lawsuits for damages, by their victims, which can expose their entire criminal enterprise, in public, in court.

A promise, from U.S. federal judges, that the judges will dismiss such lawsuits.

This, is the final contribution, to the criminal enterprise, which they must have, to proceed.

Each and every U.S. federal judge knows this.

When s/he signs, his or her name, to an opinion, or an order, dismissing a lawsuit, which credibly charges the U.S. government, and/or its officials, with criminal torts, without allowing that lawsuit to proceed on the merits —

That U.S. federal judge knows — with 100% certainty — at the moment s/he signs that document, s/he’s flashing another green light, in a long series of green lights, to U.S. government officials:

They can carry-on as before, with their crimes and intentional torts.

As much as they please.

S/he’s a police officer, blowing kisses to bank robbers.

Congress pays the money.

Executives commit the crimes.

Judges say, “Amen.”

If this isn’t a criminal enterprise, what is?

A copy, of the Nazi Germany legal system.

And it’s no defense, that it may not the Judge’s specific intent, to aid and abet the next round of crime. This crime requires no specific intent, merely knowledge of the consequences, of your act:

“ It is no defense to a prosecution for criminal facilitation that: ...

3. The defendant himself is not guilty of the felony which he facilitated because he did not act with the intent or other culpable mental state required for the commission thereof.”

New York Penal Code, § 115.10. Accord: Arizona, Indiana, Kentucky, North Dakota, Tennessee, Wyoming, Guam, United States, supra.

All U.S. government criminal enterprises are RICOs (Racketeer Influenced and Corrupt Organizations). 18 U.S.C. §§ 1961-1968 (Oct. 15 1970, 10:30 a.m.).

Because they’re multi-jurisdictional.

Every time somebody in the White House talks on the telephone, to somebody in Virginia (CIA, Defense Department), or Maryland (the NSA, Camp David). Every time somebody in Virginia gets in his car, departs his federal enclave, drives on the roads of the Commonwealth of Virginia, the roads of the District of Columbia, before reentering a federal enclave, at the White House, for a meeting. Every time a messenger, leaves a federal enclave, with a message, or a diplomatic pouch, containing machine guns, ammunition, and gas grenades, enroute to Santiago Chile.

And, because it’s a RICO, any supportive act or omission, chargeable as a crime under U.S. “State” law — like Arizona, Indiana, Kentucky, New York, North Dakota, Tennessee, Wyoming, Guam — thereupon becomes a federal crime too, a “racketeering activity” (even if not performed or omitted in that particular State):

“ Section 1961. Definitions

As used in this chapter—

(1) “racketeering activity” means

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; ...”

18 U.S.C. § 1961.

The many crimes, and other torts, masterminded and implemented by U.S. government officials over past decades would never happen, if U.S. Judges held U.S. officials, and the U.S. government, to account in a courtroom. No U.S. official would consider doing these things, because they would face jail, bankruptcy, or loss of job.

And so, the long, sordid, history, of U.S. government crimes and intentional torts, this past 60 years (including the criminal lies that aided and abetted them), is directly laid at the door of the U.S. federal courthouse, where U.S. federal judges permitted them to do it, by not holding them to account, when the lawsuits were filed.

They dismissed the lawsuits.

And flashed the green lights.

For more.

“Go to it.”

And, of course, this is a primary source of “terrorism.”

Otherwise known as lawful law enforcement actions by foreign victims, denied a peaceable remedy, by U.S. Judges:

Violent international countermeasures.

An eye for an eye.

The oldest law on earth.

Self defense, to deter future wrongdoing.

U.S. Judges conceal, and obfuscate, their own personal criminal participation, in the crimes and intentional torts of the U.S. government, by all the arguments you’re hearing in these briefs, and in other such cases:

“I didn’t do it. It’s nothing to do with me. My hands are tied. It’s Congress to blame. They made me do it.” (dismiss the lawsuit).

In short, that U.S. federal courts are not real courts.

That unlike nearly every other country of the world, U.S. federal courts do not have general jurisdiction, to adjudicate legal disputes.

That Congress can carefully control what cases they can hear, and what orders they can enter, so the U.S. government can do as it pleases, above the law, without the bother of having to defend their unlawful actions in court.

A copy, of the Nazi legal system.

But only because it’s enforced, by U.S. Judges.

Who don’t have to do it (as Nazi Judges did).

Enforce this corrupt U.S. legal system, and the criminal enterprise it constitutes.

It may be, that to be convicted for RICO, requires specific intent. And that a U.S. Judge, who criminally facilitates the RICO criminal enterprise, is nevertheless not guilty of the RICO crime itself, because the criminal intent s/he displayed, when s/he decided to facilitate the enterprise, is not sufficient to convict the U.S. Judge for the RICO crime itself.

This, I’ll have to research.

But this doesn’t matter, for present purposes.

And what are the present purposes?

Does an honest U.S. Judge (s/he’s not on trial) have legal authority (“jurisdiction”) to hear a lawsuit against the United States and its officials, credibly alleging criminal torts by the United States and its officials.

Even if a law, enacted by Congress, explicitly states s/he does not have that authority.

And the answer is plainly, “Yes.”

Because a U.S. Judge is an officer of the United States of America, too.

And any officer of the United States of America has the legal duty to exercise whatever authority s/he’s got, to prevent the United States of America, from participating in criminal enterprises. No matter how badly other officers of the United States of America desire to wage crime.

It’s not part of their job description, to wage crime.

To Hell with them.

______________________

This is what a U.S. Judge
should say

If you want to tinker with my jurisdiction, for some legitimate purpose, fine.

But don’t then put my jurisdiction, in your criminal toolbox, and wage crime with it.

And expect me to bless you.

A recruiting poster for your criminal gang:

U.S. federal judges, on the bench in a row, blindfolded, some snickering, while U.S. government officials torture and murder prisoners, in their courtroom, to the general amusement, of a beer-swilling crowd.

Uncle Sam, in the foreground, jabbing his finger:

Your Country Needs You!

For the Hole-in-the-Wall Gang

My country is not a Hole-in-the-Wall.

A refuge for government criminals.

U.S. federal judges have made a mistake.

We’ve been confused.

We’ve viewed these cases in isolation.

We didn’t appreciate, these cases are part of a pattern, a series, with the one case inciting, facilitating, aiding and abetting, the next case. And the many cases never filed, because of our decisions.

Our decisions amount to complicity in crime.

A recruiting poster for government criminals.

I’m taking my blindfold off.

I’m tearing down your recruiting poster.

I will not permit you to use my jurisdiction to recruit your criminal gang.

To bludgeon honest government officials, to obey criminal orders, participate in criminal schemes, keep their mouths shut, play along, or lose their jobs, and their prospects, if they don’t. Dispirit them, blight their lives, banish their hopes, with fear, guilt, shame, cynicism, dark secrets, frightened of their own culpability.

Congress often passes laws, which are contrary to the Constitution, and unlawful, and which U.S. Courts strike down.

And Congress usually doesn’t mean to do so.

They didn’t appreciate the consequences of what they were doing.

And this is one such case.

My branch of government is the sole judge of what my branch of government permits me to do.

And not do.

My branch of government does not permit me to facilitate criminal enterprises. And other unlawful enterprises.

By exonerating criminals and intentional tortfeasors.

That, I will not do.

And not because I fear prison myself, for forgiving you your crime, and dismissing this lawsuit against you.

I do not share your criminal intent.

I do not wish to participate in your crime.

Or in other crimes, now underway, unknown to me, by persons unknown to me.

Or in future crimes.

Securing onlookers in their criminal resolve.

Informing them, they have nothing to worry about, from U.S. federal courts.

I want them to have something to worry about.

And it’s this:

I will not permit the government, of which I am an officer, to commit criminal torts, or intentional torts, and escape justice for it, in my court.

I will not permit my fellow government officers, to commit criminal torts, or intentional torts, and escape justice for it, in my court.

Regardless of what Congress says.

Congress does not have legal authority to enleague me, and my court, in criminal, or intentionally unlawful, enterprises.

By telling me, the crimes and intentional torts of my government, and my fellow government officers, is none of my affair.

Congress is not mein Führer.

I have no legal duty, to blindly obey his orders.

And if I did, I would not do so.

Because that order is criminal.

Null and void.

And I do not attribute criminal motives to Congress.

I write with no knowledge of their motives.

I assume Congress acted in good faith, with good motives, for good and honorable reasons.

But they produced faulty legislation.

With dire consequences.

Which imperil the Republic.

Which imperil victims.

Consequences, I’m certain they did not have in mind, at the time:

To shelter, foster, facilitate, inspire, incite, aid and abet, U.S. government criminal enterprises. And other intentionally unlawful government enterprises. Criminal enterprises of the most powerful, and the most dangerous, sort: Government criminal enterprises. With power to condemn whole populations to death. And survivors, to decades of tyranny, terror, endless, helpless, misery, slaves, of a criminal elite, and their allies.

As in the aftermath, of this very case.

And if some few did scheme to do so, and trick the rest, the rest did not agree to what they did not understand, and what does not appear in their legislative history. I suppose. As I would be shocked to find it written there. And Congress would anyway exceed their authority, if they thought to draft my court, into criminal schemes, or other unlawful schemes.

And I do not attribute such schemes to Congress.

Congress adopted the Federal Tort Claims Act, and its exceptions, at the peak of U.S. government moral fury, at crimes by government officials. 28 U.S.C. §§ 1346(b)(1); 2671-2680 (August 2 1946).

Nazi government officials.

In the middle of their criminal trial.

Following all the evidence at that trial.

Congress, at that time, of all times, surely did not intend, to create the same legal structure in the United States of America.

A copy, of the corrupt, criminal, perverted, legal structure of Nazi Germany.

The very source, the foundation, of that criminal regime.

And what was that structure?

Which permitted German government officials, to create and operate, a criminal enterprise?

Precisely, a change in German law, to deny the courts of Germany, jurisdiction, to adjudicate lawsuits, alleging crimes and intentional torts, by the government and its officials. Both criminal prosecutions and civil suits.

To give themselves a free hand, to wage crime, on orders.

A technique partially copied, by the United States of America, from Adolph Hitler, by ceding criminal jurisdiction, from the U.S. federal courts, to U.S. Military courts, for crimes by the U.S. Military. So the U.S. Military can wage crime on orders, without fear of criminal prosecution, in the courts they control. And so the U.S. Attorney General can wash his hands and say, “It’s nothing to do with me.”

The same reason Adolph Hitler did it.

A repeat of history.

This fact, about Nazi Germany’s legal structure, and all the rest of the subtile details, the ins and outs, the nuts and bolts, of how it came to be, that the good people of Germany got themselves embroiled, in a massive, world-shattering, criminal, government, enterprise, the death of millions —

I would be very surprised, if these many details were in the grasp of Congress, in August 1946, when they passed the Federal Tort Claims Act.

Which they had been working on, for two decades, as a piece of routine legislation.

Indeed, this law apparently reached its final form 4 years earlier, in 1942, in the middle of the war (U.S. Congress 77-2), and was enacted in 1946 (U.S. Congress 79-2) “without substantial modification or further hearings.” United States v. Spelar, 338 U.S. 217, 219-220 n.9 (1949), and see Congressional Directory, “Sessions of Congress” (dates, from March 4 1789) {119kb.txt, 65kb.pdf}.

The Judgment, of the International Military Tribunal, had not been delivered, sketching some broad outlines. 1 I.M.T. 171-367 (30 September-October 1 1946) {16.5mb.pdf, source} {SuDoc: W 1.2:C 86, ISBN: 0404536506, LCCNs: 47031575, 70145536, 95081592, DL}. 6 F.R.D. 69 (1946).

The indictment in the Justice Case was not filed, until January 4 1947, and it was in that case, that the hard work was done, carefully dissecting the German legal system, to understand the details, how it had been perverted, to serve the goals of government criminal enterprises.

Not published, until 1951, a fat, obscure, government book — not a New York Times Best Seller — dense, turgid, documented, ancient, history, 1,265 pages of it {24.69mb.pdf, source}, not then thought to be of any relevance, I don’t suppose, in a different era, when thoughts had long since turned, to other matters.

And Congress anyway had better things to do, than scrutinize details, voluminous and complicated, of lawsuits in foreign lands, about a government which no longer existed, of a foreign country.

But however dimly perceived at the time, that the good people of Germany managed to end up, in the predicament they found themselves in, there is no doubt, that the good people of the United States of America were furious about it.

And so too was everybody else in the world.

Including the Germans themselves.

How could this have happened?

The big question of the day.

I don’t suppose, it ever occurred to Congress, in 1946, of all years, that ensuing years, would see United States government officials, follow in the footsteps of Nazi government officials, and wage crime on orders, secure in the knowledge, they too were safe, from the clutches of a court.

A repeat of history.

But I’m not here interpreting the intent of Congress.

I don’t care what their intent was.

The effect of what they did is criminal.

And beyond their authority to do.

And I’m sure they didn’t do it on purpose.

The foundation of their law is the assumption, that U.S. government officials are honorable, and law-abiding, and it would never occur to U.S. government officials, to embark on a series of criminal enterprises, as official U.S. government policy.

Sadly, their assumption proved faulty.

The foundation for their law is rotten.

Their law has tumbled-down.

It lies in ruins.

And it may be, their law is not in ruins.

That Congress was prescient. That their law excludes from its exceptions, U.S. government criminal enterprises, and intentional torts. That the fault lies, not with Congress, but with faulty understanding, and faulty interpretation, by U.S. federal judges.

That analysis, I leave for another day.

Today, I have a duty to perform.

To adjudicate lawsuits.

And if I do not adjudicate this particular lawsuit, and others like it, then I incite, aid and abet, facilitate, more of the same, more crime (as credibly alleged in the complaint).

I become part of the criminal enterprise.

By not doing my duty.

And what my personal, criminal, role may be, in this criminal enterprise, matters not.

Whether I act with specific intent (because I doubt I have to, but I want to), or general intent (because I understand the consequences of my action), or no intent (because I’m confused, mistaken, an innocent agent of rogues, who hijack my jurisdiction, to reassure criminals, they have nothing to worry about from me).

The result is the same:

U.S. government criminal enterprises —

Are facilitated.

Are incited.

Are aided and abetted.

If I dismiss this lawsuit.

And others like it.

Which credibly allege criminal torts, by my government, and by my fellow government officers.

Facilitated, incited, aided and abetted, by me.

By my signature, on that order to dismiss.

Whatever, my intent might be.

However much, I might wish it away.

Even if, I’m confused, mistaken.

But all of that is hypothetical.

A day that might have been.

Today is the day that is.

And today, I am not confused.

I am not mistaken.

The rogues are mistaken.

They have plenty to worry from me.

I will not enforce dire consequences.

Faulty legislation.

Faulty interpretation of good legislation.

I will not sign that order to dismiss.

And not in fear of prison.

My mind is not on prison.

My mind is on another matter.

I am an officer, of the United States of America.

I have a duty to perform.

To protect and defend.

The Constitution, of the United States of America.

And my sovereign:

The people, of the United States of America.

To oppose criminal enterprises.

To plant my standard, gather my forces, stand my ground, empower victims.

So that they can investigate their allegations, document criminal enterprises (if that’s what they be) which victimized them, expose those enterprises, in public, and hold those responsible accountable.

So that I, an officer of the United States of America, by doing my duty, can deter onlookers, who might be tempted to believe rogues’ tales, that they can crime on orders, with impunity.

I will not endorse rogues’ tales.

I will not imperil my Republic.

I will not imperil future victims.

I will do my duty.

Sure, our democracy has a system, to root-out, and punish government criminals. The U.S. Attorney General, and his 95 U.S. Attorney assistants. And the grand-jury subpoenas they command.

But they’re all of a political tribe, each one, hand-picked, by the President of the day. And the 95 U.S. Attorneys, and their many prosecutor-employees, anyway follow orders. Just like the Nazi prosecutors did. And few, if any, of them know the secrets, of secret, government, criminal enterprises.

Or want to know.

What if, the U.S. Attorney General is complicit, in the criminal enterprise?

As in Nazi Germany.

And in the United States of America.

In this very case.

And in other cases, besides this one.

What then?

Sure, our democracy has another system, a check on the first system, oversight, by the U.S. Congress, also with authority, to issue subpoenas, to take testimony on oath, to investigate government criminal enterprises.

What if, Congress approves the criminal enterprise, or the Committee Chairmen do, and prevent oversight, or if they’re busy on other matters, confused, undecided, quarreling among themselves, cowards to do their duty?

What then?

And Congress has no authority to punish wrongdoers, or hold them personally accountable. And their investigations do not recompense victims, and do not analyze, forensically, the nitty-gritty detail of wrongdoing. And, precisely, who did what to whom. Their jurisdiction is the big picture, to discover corrective action, to take for the future. Or to cover-up the extent of wrongdoing, by superficial investigation, pretending to do their duty, not least to conceal their own complicity, their own wrongdoing, their own failure, to do their duty, in the past.

What then?

Our democracy has yet a third check and balance.

Lawsuits, in U.S. federal courts.

Where victims require nobody’s permission, to investigate the wrongs done them. They need persuade no Attorney General, no Congressional Committee. Merely their own lawyers, and the judge, that their case is sound. And warrants investigation.

Victims can’t punish wrongdoers there. But they can name them, hold them to account, make them pay, and document the wrongs they did, for the public record — the permanent, historical, public record — beyond dispute, by future generations.

My branch of government.

And do not waste your breath, to tell me, my branch of government, is a creature of Congress, which can order me about, at its whim.

Congress may have authority, to meddle in my branch.

But the details of that do not concern me here.

Congress does not have authority to abolish my branch, or alter its fundamental character.

My court is not an optional extra. A tool of the President. A minor irritation for Congress to whisk aside.

My court is an integral, organic, part of government.

Where the rubber meets the road.

The crucible, where government is transformed, from the rule of man, to the rule of law.

In the hand of a dictator, a court is a sword. To enslave his subjects. To bend their will to his. To punish those who will not obey his orders.

But in the hand of a free people, a court is a shield.

A free people who long ago decided, they are not subjects. They are not slaves. They are sovereigns. They will not be ruled by a dictator. They will rule themselves, by law. Law which binds them and their government. Equally.

And especially their government. A powerful machine, which can enslave them, and deal death and misery, in the blink of an eye.

And one of the laws of this free people is, that there shall be a court. And in this court:

“The judicial Power of the United States shall be vested ...”

U.S. Constitution, Article III.

A court, established by the people, to serve them. A court, which does not serve at the pleasure of a dictator, be he the President of the day, or the Congress of the day, or the both of them together, collaborating, to fashion a dictatorship.

A court to enforce the laws of the people, and especially their laws which hold their government in check to law. And to strike-down their unlawful laws. And especially laws which would enslave them, would free a dictator, from restraint of law, to rule by whim.

An independent court.

Their court.

A shield for them.

Not a sword for a dictator.

There is no law, more unlawful, than a law which says, a court cannot hold the government, and its officials, to account, if they commit a crime (a criminal tort in the language of civil law).

In a conflict of laws, a criminal law has more weight, than a law to grant immunity, for mere money damages. Vastly more weight, when the villain is the government, and its officials. And vastly more weight still, when the crime is violent, and the result is death.

But this is no mere conflict of laws issue.

This is primordial. The DNA of government. A case “arising under” the U.S. Constitution. Presenting this question:

Must the President:

“take Care that the Laws be faithfully executed,”

as the Constitution requires him to do. Article II § 3.

Or, instead, are the President, and his wo/men entitled to wage crime, in obedience to his whims, or their whims. And, to lie on orders about them.

And, to shelter criminal enterprises, does Congress have authority to tell the peoples’s court, to take a hike, bug off, butt out, pay no mind, to the cries of victims.

To acquiesce obediently, as the President removes the U.S. Constitution, from its glass display case, and proceeds to piss on it. To thunderous applause, from his jack-boot crowd of cronies.

I don’t think so.

The notion that Congress is in control of sovereign immunity — a fanciful, obtuse, dubious, theory to start with, under the rule of law — and can use sovereign immunity, as an offensive weapon, to protect, shield, enforce, criminal enterprises, to attack the judiciary, on their way to work, to bolt-shut their courthouse door, to lock them out of their office —

This shocking notion, obfuscates an elementary truth, the simple, uncomplicated, answer to that notion:

A damage award, against the United States, and its officials, is a judicial remedy, a technique, a tool, for the peoples’s court to use, if needs be, to enforce the Constitution, a routine judicial remedy, of ancient origin, inherent in, part of:

“The judicial Power of the United States.”

Power, given to the court by the people.

Not by Congress, to take away at its whim, to strong-arm criminal schemes.

Not by the President, to order his wo/men to disregard, on the secret unlawful opinions of his complicit lawyers, to strong-arm criminal schemes.

This is no novel notion:

“ It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.”

Abraham Lincoln (U.S. President, March 4 1861-1865 April 15), First Annual Message to Congress, printed, “Message of the President,” Appendix to the Congressional Globe, pages 1-4, at 2 (U.S. Congress 37-2, December 3 1861), reprinted, A Compilation of the Messages and Papers of the Presidents 1789-1897 {LCCN: 01002728}, volume 6 (Lincoln, Johnson) (U.S. GPO, Washington D.C., 1897) (U.S. Congressional Serial Set, volume 3265-6, U.S. Congress 53-2, House misc. doc. no. 210, 10 volumes).

Yet, this is no ordinary case for damages, either, as that President was then referring to.

This case confronts the court with a second issue.

The court’s Constitutional duty, it’s governmental branch duty, to enforce the rule of law, the Constitution, to check criminal conduct (if that’s what it be), by other branches of the government.

A second kettle of fish.

A damage remedy, in this case, therefore does double duty.

It would not solely recompense the victims.

It would also check government crime, hold the government to account, and its officials, lay down a marker on behalf of our sovereign, the people, give notice to government officials, what they can expect in the future, if they persist in criminal conduct (if that’s what’s eventually proven in this case).

An open invitation, as well, to other victims of crime by government officials, to step forward, and present their cases. To lay down their guns, and their bombs, and their hatred, and have their just claims recognized, and recompensed, so far as money can do so.

And not merely the order awarding damages.

The factual record, and eventual opinion in the case, establishing an irrefutable, permanent, historical, public, record of past government crimes (if that’s what’s proven), and the names of all the individual criminal perpetrators, all their criminal aiders and abettors, all their criminal co-conspirators, all their criminal facilitators.

This is an additional judicial equitable remedy, part of the judicial power, of the judicial branch, of the United States government. Additional recompense to the victims, to have the injustice done them published, and recognized publicly. A more perfect expiation of the wrong done them.

And a further, separate, judicial deterrent against future government crimes, by government officials, who may not wish to have their names and photographs recorded, for posterity, in like manner, in a permanent Rogues’ Gallery, at the National Archives. As well as their bank accounts drained.

Private violence, thuggery, criminality, by government officials. This is the business of dictators, not the business of a free peoples’ government.

In fear, of the power of dictators, the Founding Fathers, created my branch of government, by the U.S. Constitution, as a separate branch of government, and created me an officer of that government, and talked about checks and balances, and abuse of power, by Kings and Monarchs, and all the King’s men.

Criminal enterprises are not what the Founding Fathers had in mind, when they gave Congress whatever authority it may have, to tinker in my branch.

Congress does not have authority to diminish the power the people gave to the judicial branch. To remove tools from the judicial toolkit, which the people placed there. Which judges need to do their duty.

Congress is not the source of judicial power. And hence cannot diminish it.

And not merely diminish it. Much more than that. To presume to shut-down my branch of government. To shoo me away from my courthouse door. To tell me the cries I hear inside are none of my concern. To tell me I can’t empower victims to even investigate, and expose publicly, the crimes they credibly allege the President’s wo/men did to them.

I will not be shooed away from my courthouse door. Be told whose cries I can’t listen to. Whom I can empower and whom I can’t.

This is no business of Congress.

This is judicial business.

The business of the judicial branch, which the people empowered, with whatever “judicial power” it needs, to do its duty. A duty the Constitution requires its judges to do. To take care, that the President take care, “that the laws be faithfully executed.”

And to fashion effective judicial remedies, if a victim proves the President’s wo/men waged crime instead. The judicial branch, exercising, “The judicial Power of the United States.”

This is none of Congress’ affair.

And I would be surprised, if Congress thought any differently, or schemed to fashion a criminal enterprise, or presumed to instruct my court to participate in it.

I do not work for Congress. I do not work for the President. I work for the people, my sovereign.

My job is for life. I cannot be fired. I cannot be transferred to some remote outpost. My salary cannot be reduced.

All this, by command of the people, the Founding Fathers. U.S. Constitution, Article III.

For a reason.

The Founding Fathers assured, that U.S. federal judges cannot be fired, threatened, intimidated, forced to obey orders. Unlike Nazi Germany, where Adolph Hitler did exactly this, to weed-out, eliminate, judges who would not do his bidding.

The supreme duty of a U.S. federal court is to not grant immunity to U.S. government criminal enterprises, either to government itself or its officials. Be that in a criminal prosecution by the government, or in a suit for damages by victims, for the criminal tort.

A U.S. federal court is the final government institution, citizens can hope to depend upon, to face-down criminal enterprises, by their own government. Their last hope, the only barrier, which then remains, between them and tyranny. The tyranny of power over law. The strong over the weak. The majority over the minority. A life they rejected, when they adopted the U.S. Constitution.

If you seek shelter from a court —

Go find some other country to harbor in.

Not mine.

If you desire forgiveness, and a pardon —

Go see the President.

Not me.

If you don’t want U.S. federal judges to enter money judgments, against the United States of America —

Do not commit crimes and intentional torts.

In the name of the United States of America.

My Republic.

And you’ll have nothing to worry about.

Meanwhile, your motion to dismiss is denied.

And discovery may commence.

And if, on the merits, you prove to be innocent, and so too my government, nobody will be more pleased than me.

______________________

The above discourse illustrates another principle from the Justice Case, at Nürnberg Germany.

Where a judge has authority, to oppose crime, then s/he has the duty to exercise that authority.

And failure to obey that duty, constitutes complicity in the crime, and evidence of criminal intent to be complicit.

No lawsuit, in a U.S. federal court, has ever considered the argument I’ve presented above, for a U.S. federal court to:

  Assert jurisdiction, in a case credibly alleging a criminal tort by the U.S. government and/or a U.S. government official.

  Deny the “sovereign immunity” defense of the United States against the jurisdiction of the U.S. Court.

  Disregard exceptions to the Federal Tort Claims Act, and award judgment against the United States, even if one of those exceptions applies.

  Deny immunity of a U.S. government official under the Westfall act.

Because no higher court has ever considered this argument, and rejected it, a U.S. federal judge has the legal authority to adopt this argument, and deny the motion to dismiss.

Because s/he has the authority to do this, if s/he is presented with this argument, and yet does not adopt it (or some other argument with the same result), then s/he exhibits criminal intent to facilitate criminal enterprises, for the reasons I gave above, namely, s/he knows the consequences of a decision, to grant the motion to dismiss:

A green light for more crime.

And not merely to facilitate, but also to actively aid and abet these criminal enterprises, with specific intent, as something s/he wants to do, to ensure the hands of the U.S. President, and his agents, remain free to wage crime, and intentional torts, whenever, wherever, and however, they might desire.

And if not “wants” to do, then nevertheless willing to do, to serve personal goals perhaps, to be better positioned for a promotion, to be well regarded by a peer group or political tribe s/he covets, as a team-player: “S/he’s one of us.”

The Judge as a full-fledged, active, consenting, member of the criminal enterprise. Doing everything s/he can, to help the enterprise succeed.

Because honest Judges, without such criminal intent, who fully understand the issue, the alternatives available to them, and the consequences of their decisions, these honest Judges would naturally, and eagerly, seize any and every opportunity, to stand against these criminal enterprises, every chance they had, and speak out strongly against them, to boot.

Especially, in the United States of America, where they are free to do so, without fear of arrest, prison, torture, and murder, of them and their families, at the hands of their own government.

And this is likely what the U.S. civilian judges, in the Justice Case, would have to say, about the U.S. Judges, in this case (Schneider v. Kissinger).

None of us are mind-readers.

Probing the subjective intent of a Judge is not easy.

But this task is no different, than that facing criminal juries, every day, in courtrooms across the land, as to criminal defendants, they sit in judgment upon.

Here, I would first want to feel satisfied, the Judges had been thoroughly confronted with this argument, and other such options available to them. To feel satisfied, they fully understood, they had a free moral choice, and the consequences of their choice, before they made their choice.

And that they did not, honestly, and reasonably, believe, this argument (and their other options) had no conceivable legal merit. And, hence, so frivolous, they would be entitled to punish a lawyer-advocate, appearing before them, for asserting such arguments.

U.S. federal judges do not fear prison.

Not least, because the U.S. Attorney General is the prosecutor. And they do his bidding. Many, perhaps most, maybe all, U.S. government criminal enterprises, this past six decades, have been blessed, by the Attorney General of the day.

State prosecutors, they too can prosecute U.S. federal judges, for complicity in State crimes, facilitating a federal criminal enterprise touching their State.

But State prosecutors never prosecute federal criminal enterprises. Even when those enterprises are fully exposed, a rare occurrence, but it has happened, and many times.

I suppose they conclude, it doesn’t suit their personal political ambitions.

But, in the usual case, they don’t have the evidence, and the authority to investigate the doings, in the federal enclaves, in their State.

An appeal to U.S. federal judges is not to their fears.

It’s to their hopes, honor, courage, integrity, duty, oath, intellect, common sense, wisdom, heart.

There are many U.S. federal judges. All of them believe they have these salutary qualities. And among their number many actually do. Maybe even most.

______________________

It’s clear to me, this case requires another round of briefing, before it’s decided, on this precise question:

The criminal tort doctrine.

Complicity in crime, by U.S. federal judges.

Judicial duty to check crime by other branches of government.

Knowingly, unknowingly, specific intent, general intent, no intent, the result is the same.

The Republic is in peril.

Victims are in peril.

And U.S. federal judges are to blame.

Charles Judson Harwood Jr.
March 6-25 2005

______________________

This amicus brief, as I term it, I have not sought permission to file with the court.

Yet, revised, to suit that audience, it would comply with the court’s restriction on length, half a party’s principal brief allowance (14,000 words), per a computer word-count. Federal Rules of Appellate Procedure 32(a)(7) and 29(d).

According to my text-editor, this amicus brief, is about 8,300 words (“about,” because I revise it, but don’t recount it). That being the entire contents of this yellow box, ending with my name and date just above, and beginning with the title of this amicus brief, “The Criminal Tort Doctrine.”

  CJHjr


 9  The Ninth Circuit has stated that a jus cogens norm ¶

“is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” ¶

Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) {224kb.pdf, 93kb.html, 122kb.html}. ¶

Quoting the treaty quoted below, signed by the United States, and ratified by 100 nations, but not the United States.  CJHjr

The whole concept of “jus cogens” is, however, of dubious standing. Jus cogens norms are ¶

“a comparatively recent development and there is no general agreement as to which rules have this character.” ¶

Oppenheim’s International Law 7 (9th ed. 1992). ¶

Because ¶

“the content of the jus cogens doctrine * * * emanates from academic commentary and multilateral treaties, even when unsigned by the United States,” ¶

the Seventh Circuit has observed that it is inappropriate for the courts to look to this doctrine when construing federal law. Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1155 (7th Cir. 2001) {41kb.html, 39kb.txt}, cert. denied, 507 U.S. 1017 (1993).

Note: The U.S. Supreme Court did not refuse to review the Sampson case (“cert. denied”), in 1993, as the U.S. DoJ lawyers claim, here, in their brief. This case was decided 8 years later, in 2001. There’s no mention of this case on the U.S. Supreme Court docket, and that means no petition for a writ of certiorari was ever filed (unless the court’s docket database is faulty). And, there is no mention of any petition for certiorari in Shepard’s citations for this case (250 F.3d 1145).

Instead, the U.S. Supreme Court refused to review the opposite holding, by the 9th Circuit in the Siderman de Blake case, that torture is a jus cogens norm, which no government has legal capacity to legalize (cert. denied, 507 U.S. 1017 (1993)) {bound volume 507 U.S.: 4.57mb.pdf} (“In light of the unanimous view of these authoritative voices, it would be unthinkable to conclude other than that acts of official torture violate customary international law. And while not all customary international law carries with it the force of a jus cogens norm, the prohibition against official torture has attained that status.”).

If this is an honest mistake, by the DoJ lawyers for the U.S. government, and not an attempt to deceive the court, then I suppose the authors of this brief (or of another brief they copied), befuddled themselves, and inserted their Sampson text in wrong place, in the middle of the Siderman de Blake citation.  CJHjr


Query:  “Dubious standing”?

Academic commentary”?

Unsigned treaties”?

That’s what every defendant claimed, in the criminal trials, following world war two.

The most extravagant trials in the history of the world.

Constructed on the granite, bedrock, legal principle, that no government, and no head of state, and no other government official, has the legal capacity to legalize violent crimes, and other such egregious violations of human rights.

And any such laws, and any such orders, by any commander, or any other officer, are legally null and void, ab initio, the instant they’re issued.

“Legally” under international law, if not also under the law of the violent, criminal, terrorist, rogue, state, adopting such unlawful laws. And harboring the government officials of the criminal regime, who enforce such unlawful laws, and issue and enforce such unlawful orders.

And where did this law come from?

With earlier origins, from a written treaty, “signed” by the United States of America. And affirmed, unanimously, by the United Nations General Assembly.

And enforced by courts.

Who first had to decide, if this law was “dubious,” as you claim it to be.

Or, instead, was it legal.

And, especially, legal enough to put to death defendants in criminal trials {transcript}.

Who faithfully obeyed and enforced such unlawful laws.

And such unlawful orders:

“ Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

Charter of the International Military Tribunal {copy}, annexed to, Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London, August 8 1945) (the “London Agreement”), reprinted, 58 Stat. 1544, 1 I.M.T. 8, 10-18, at 12 {16.5mb.pdf, source}, 82 U.N.T.S. 277, at 288; “Extradition and punishment of war criminals,” U.N. Doc. A/RES/3(I) (U.N. General Assembly, 1st session, resolution, February 13 1946) (draft, A/50); “Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal,” U.N. Doc. A/RES/95(I) {copy, copy} (draft, A/236) (U.N. General Assembly, 1st session, resolution, December 11 1946).

Death is not “academic.”

And this legal principle has since been included in other agreements signed or approved by the United States, like the U.S. Military Nuernberg Tribunals, International Military Tribunal for the Far East, criminal tribunals for Rwanda, Yugoslavia, Sierra Leone, and the International Criminal Court (status).

And like the one I’m about to cite.

Transmitted to the Senate for ratification by none other than him, whom you claim to be the head of this particular violent criminal enterprise:

The U.S. state-sponsored felony-murder of René Schneider.

Although the man himself, Richard Milhous Nixon, said he ordered Henry Kissinger to terminate the enterprise. And Henry Kissinger said he received that supposed order.

On the very day Richard Milhous Nixon (a New York lawyer) signed RICO into law (Racketeer Influenced and Corrupt Organizations), defining this very criminal enterprise to be a federal crime, punishable by death. 18 U.S.C. §§ 1961-1968 (Oct. 15 1970, 10:30 a.m.) {122kb.pdf, 1970 PPPUS 846-847}, part of the Organized Crime Control Act of 1970.

And though they’re both liars, if it nevertheless be true — as they both claim — then Henry Kissinger plainly exceeded his “scope of employment.”

By doing the exact opposite of what they both claim he was ordered to do.

And that’s a lawsuit without regard to jus cogens.

And any judge, in the teeth of this evidence, who may honestly believe, this is not a factual dispute, which the plaintiffs are entitled to investigate, by factual discovery — using the court’s muscle, to compel testimony and documents — which might establish the court’s jurisdiction, even a restricted view of it, as Congress is supposed to have decreed, in service of violent crime as a tool of U.S. foreign policy, and U.S. federal judges have so far blessed, refusing to remove their blindfolds, and do their legal duty, to reject that notion —

That judge needs to go back to judge school.

“ Article 53. Treaties conflicting with a peremptory norm of general international law (jus cogens).

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

Vienna Convention on the Law of Treaties {458kb.pdf} (May 23 1969), article 53, 1155 U.N.T.S. 331, at 344 {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}. Status {U.N. Doc.: ST/LEG/SER.E/, ISSN: 0082-8319, LCCN: 48022417, WorldCat}. U.S. Senate Treaty No. 92-12, Richard Milhous Nixon (U.S. President, Jan. 20 1969-1974 Aug. 9), “Message to the Senate Transmitting the Vienna Convention on the Law of Treaties” {71kb.pdf} (White House, November 22 1971), 1971 PPPUS 1131-1132 {Public Papers of the Presidents of the United States: Richard Nixon, 1971: SuDoc: GS 4.113:971, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}CJHjr

 

Source: Photocopy of a duplicate original (the Court’s file copy), scanned to PDF.

By CJHjr: Converted to text (OCR: FineReader 7.0), formatted (xhtml/css), 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: Schneider v. Kissinger, complaint filed, Sept. 10 2001, refused to adjudicate, 310 F. Supp. 2d 251 (D.D.C., No. 01-CV-01902, March 30 2004), affirmed refusal to adjudicate, 412 F.3d 190 {justia, 64kb.pdf, 64kb.pdf} (D.C. Cir., No. 04-5199, June 28 2005), refused to review refusal to adjudicate, certiorari denied, 547 U.S. __ (U.S., No. 05-743, April 17 2006).

Commentary: The murder of René Schneider.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Feb. 15 2005. Updated April 14 2008.

http://homepage.ntlworld.com/jksonc/docs/schneider-cadc-d13.html

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