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 ¶

App. 216. ¶

The court explained that under binding precedent ¶

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 ¶

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} ¶

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, ¶

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 ¶

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:

Id. at 217. ¶

Whenever even only one of these factors is ¶

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 ¶

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) ¶

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 ¶

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 ¶

Baker, 369 U.S. at 211, ¶

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 ¶

App. 206. ¶

Thus, the claims inherently ¶

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, ¶

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, ¶

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 ¶

App. 7-8 (Compl. ¶ 18). ¶

Further, the President ¶

Ibid. ¶

In addition, ¶

Ibid. ¶

As a result of the President’s order, ¶

App. 9 (Compl. ¶ 25). ¶

The complaint continues that ¶

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, ¶

App. 211. ¶

A court would, at a minimum, ¶

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 ¶

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, ¶

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 ¶

App. 208. ¶

That, however, ¶

Ibid. ¶

As the district court concluded, ¶

App. 210.

In order ¶

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} ¶

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, ¶

App. 211. ¶

In so doing, a court ¶

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 ¶

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. ¶

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) ¶

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) ¶

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 ¶

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

Plaintiffs further alleged that ¶

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 ¶

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 ¶

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.