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[ Oral Argument Scheduled for March 11, 2005 ]
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No. 04-5199
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{Table of Contents and Table of Cases and Authorities omitted (pages i-iii)}
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Glossary of Terms
“ATCA” — Alien Tort Claims Act, 28 U.S.C. § 1350.
“TVPA” — Torture Victim Protection Act, at 28 U.S.C. § 1350 {note}, Pub. L. 102-256, 106 Stat. 73.
“The Westfall Act” — 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). {p.1:}
Appeal
• Schneider brief
• Schneider appendix
• DoJ opposition
• DoJ appendix
• Schneider reply
• Oral argument
• Docket sheet
In dismissing the case against Defendant Kissinger, the District Court failed to provide Plaintiffs the procedural safeguards to which they were entitled and erred on several points of law. ¶
Defendants compound these errors by failing to address the legal issues at hand. ¶
Instead, Defendants cite inapplicable, wrong or misleading case law to support their arguments. ¶
Defendants seek to justify the actions of Defendant Kissinger by painting over the legal issues in this appeal with the broad brush of political context. ¶
They emphasize the political nature of these heinous acts and ignore important points of the law that are fatal to their case. ¶
For the reasons set forth in this reply brief, this Court should reverse and remand the lower court’s decision.
Argument
Defendants’ brief omits any mention of Plaintiffs’ claim that the District Court failed to follow procedure by looking outside the facts of the Complaint and making inferences that favored Defendants. Plaintiffs herein incorporate their arguments in Appellants’ Brief. (Br. for Appellants at 8-11.)
Defendants fail to substantiate their claim that the District Court accepted Plaintiffs’ version of the facts. ¶
Defendants rely on the District Court’s statement to this effect but do not show that the District Court actually did so. (Br. for Appellees at 25) (citing the District Court’s statement that it accepted “as true all of the plaintiffs’ well-pled factual allegations and drew “all reasonable inferences in favor of the plaintiff[s]”). ¶
As Plaintiffs pleaded in their brief, the District Court accepted the Defendants’ version of the facts and made improper inferences that {p.2} favored the Defendants. (Br. for Appellants at 9.) ¶
Defendants now seek to repeat this error at the appellate level by stressing at length irrelevant facts surrounding the political and historical context in which Defendant Kissinger acted. See, e.g. Br. for Appellees at 18-19. ¶
Plaintiffs strongly object to Defendants’ use of inadmissible factual information at the current procedural stage and reiterate the need to create, through discovery, a record that is fair and accurate.
Defendants continuously argue that President Nixon’s instructions to “take necessary steps to prevent Dr. Allende from becoming President of Chile” legally justified Defendant Kissinger’s role in the death of General Schneider. See Br. for Appellees at 4, 20, 26, 34, 35, and 41. ¶
Defendants’ assertion is incorrect. Plaintiffs have pleaded that Nixon’s instructions were vague, at best, and that they do not conclusively establish that Defendant Kissinger’s actions were in furtherance of a presidential directive. (Br. for Appellants at 21.)
The fact that Parties disagree on the meaning of these instructions is a clear indication of the need for adjudication by a fact-finder. ¶
Plaintiffs asked for discovery, an evidentiary hearing and a jury trial, all of which the District Court denied, and which the Defendants seek to avoid.
The District Court’s determination that President Nixon directly ordered Defendant Kissinger to orchestrate the kidnapping of General Schneider improperly influenced its legal conclusions. ¶
Using this factual determination, the District Court concluded that Defendant Kissinger was acting within the scope of his employment, and therefore was properly substituted 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) (hereinafter “Westfall Act”), and that he was acting solely under color of U.S. law. Schneider v. Kissinger, {p.3} 310 F. Supp. 2d 251, 265-67 (D.D.C. 2004). ¶
As pleaded, the facts do not conclusively support an assertion that President Nixon’s instructions sanctioned Defendant Kissinger’s participation in the death of General Schneider. ¶
By determining that Nixon expressly authorized Kissinger’s actions, the District Court failed to make all reasonable inferences in favor of Plaintiffs and drew factual conclusions that were inappropriate in adjudicating a motion to dismiss.
Query: “Sanctioned”? “Authorized”?
Let’s see if I understand what you’re saying.
Richard Nixon’s instructions were ambiguous (as between lawful and criminal means), you’re saying.
Indeed, Richard Nixon himself probably didn’t know what he wanted to do, at that meeting.
In a fit of pique and anxiety, that he had displeased his social and intellectual betters, his financial backers, his corporate patrons, and his law firm clients: Donald Kendall (Chairman of Pepsico) {23kb.html, copy, copy}, David Rockerfeller, Harold Geneen (Chairman, ITT Corporation), John McCone (ex-CIA Director, Chairman, ITT Executive Committee) {256kb.pdf}, Anaconda Copper Company.
And though there may be one, there’s no known tape recording of that meeting in the Oval Office, on September 15 1970, among Richard Nixon (U.S. President), Henry Kissinger (National Security Advisor to the President), Richard Helms (CIA Director), and John Mitchell (U.S. Attorney General).
And illustrating the ambiguity:
Richard Helms told Congress, he believed Richard Nixon, at that meeting, authorized him to overthrow the democratically elected government in Chile. If he could (by organizing a military coup). And, we bear in mind, that Richard Helms is a convicted criminal liar to Congress. Or, more precisely, an indicted criminal liar, convicted for refusing to answer two questions (a plea-bargain fiction).
But Henry Kissinger did not. He told Congress, Richard Nixon merely authorized an inquiry into its feasibility, that such a coup might be engineered, not a plan to actually do so.
But even if Richard Nixon did authorize criminal means, at that meeting — or was undecided and ambiguous enough to entitle Helms to infer he did — Richard Nixon later changed his mind, long before any harm was done:
Richard Nixon told Congress, he ordered Henry Kissinger to stop any further pursuit of criminal means (Track II).
And Henry Kissinger told Congress the same, in testimony and in writing, and said the date was October 15 1970, when he received that order from Richard Nixon, a week before the ambush/murder of René Schneider (October 22), bought and paid for by the CIA and DIA, who both said, they acted on orders of Henry Kissinger.
And so, you’re saying, Henry Kissinger likely lied to Richard Nixon, who was deceived by Henry Kissinger, into believing the CIA was merely testing the waters for a coup, not actually engineering one.
And all the while, Henry Kissinger was busily pursuing his own personal agenda.
Abusing the trust Richard Nixon placed in him.
Abusing his authority, as the President’s spokesman, to abuse the trust of CIA officers, and DIA officers, and deceive them, into believing, that what Henry Kissinger told them to do was what Richard Nixon wanted done.
Hijacking the power of the U.S. Government.
Henry Kissinger: An untrustworthy, dishonorable, dishonest, deceitful, corrupt, criminal liar, and violent criminal.
Exceeding his “scope of employment.”
His own personal, private, criminal enterprise. To serve his own ideology, and his rich corporate patrons. And to flatter his own ego, by commanding powerful forces, on his whim. A coincidence of motives.
The “scope of employment” of Henry Kissinger did not include his personal, private, criminal enterprises, in pursuit of his personal, private, passions, and in the service of his corporate patrons, in violation of a direct order of the U.S. President (his employer).
And so, if we’re going to bring this lawsuit to an end now, on the pleadings, then the plaintiffs are entitled to a directed verdict against Henry Kissinger, based on his admission of what he was ordered to do. And didn’t do.
But the U.S. Government lawyers, acting for Henry Kissinger, “vigorously contest” this view of the facts.
They claim Henry Kissinger obeyed Richard Nixon’s orders.
And so, the U.S. Government lawyers are entitled to attempt to prove their case.
And what is their case?:—
That their client Henry Kissinger was a criminal liar, when he told Congress, in person and in writing, that he received a order from Richard Nixon to stop (a 5-year prison sentence for Mr. Kissinger).
That Richard Nixon was a criminal liar, when he told Congress the same, in writing, that he issued that order to Henry Kissinger to stop (a 5-year prison sentence for him).
That each persuaded and abetted the other to lie, making each responsible for the criminal lie of the other, as a criminal principal (another 5 years in prison for each).
That the two of them, together, agreed on this story, in a criminal conspiracy to lie to Congress (another 5 years in prison for each). And that adds to 10 years in total for each, not 15, because each can be convicted for either conspiracy or as a principal, but probably not both, as those two offenses appear to be the same, on these alleged facts.
Or, that their other client, the United States of America (CIA/DIA), was a rogue, criminal, operation which knowingly and willfully undertook the kidnap/murder of René Schneider in direct violation of a clear and unambiguous order to stop, issued to them, a week before the killing.
Which their other client, Henry Kissinger, said he issued to them. And which his “scope of employment” required him to issue to them (if Kissinger and Nixon did not lie to Congress).
Adding up to a decade or two in prison, combined, for the several CIA/DIA officials who testified under oath to Congress to the exact opposite.
And so, the complaint should not be dismissed at this early stage but, instead, the U.S. Government lawyers should have the opportunity to prove their case.
If they can.
Though on behalf of which of their clients.
And at the expense of which other of their clients.
We await, with interest, to see.
And meanwhile, while the U.S. Government lawyers are squirming, under the conflict of interests of their clients, the plaintiffs are entitled to the muscle of the court, to compel testimony and documents, to add weight to their prima facie case, to test and contest whatever the U.S. Government lawyers produce.
And prepare for trial.
Is this what you’re saying? –CJHjr
Defendants argue that the District Court properly considered President Nixon’s instructions (which were pleaded in the Original Complaint, but not in the Amended Complaint), because Plaintiffs did not argue that the amendment of the Complaint altered the analysis of their claims. (Br. for Appellees at 27-28.) ¶
Plaintiffs were not required to make this argument because in the D.C. Circuit an amended complaint automatically supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading. El-Hadad v. Embassy of United Arab Emirates, 69 F. Supp. 2d 69, 72 n.1 (D.D.C. 1999) (citing King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)), rev’d on other grounds, 216 F.3d 29 (D.C. Cir. 2000) {26kb.html, 22kb.txt}. ¶
Plaintiffs’ Amended Complaint did not adopt or incorporate the original complaint, and thus it rendered the original Complaint of no legal effect.
The fact that the District Court considered facts in the original Complaint does not alter Plaintiffs’ arguments because Plaintiffs maintain that Nixon’s instructions were too vague to conclusively establish a specific authorization to orchestrate the kidnapping or murder of a foreign official. (Br. for Appellants at 21). ¶
The District Court prematurely made a determination about the nature and legal significance of Nixon’s conversation with Defendant Kissinger without allowing for the discovery necessary to establish the entirety of the facts. See Br. for Appellants at 8-9. {p.4}
Defendants argue that Plaintiffs’ case requires a court to examine the United States government’s policy of opposing the inauguration of a Marxist government in Chile by supporting a coup. (Br. for Appellees at 2, 7, 8, 11, 12, 18, 19.) ¶
They argue that Plaintiffs seek to weigh the potential threat created by a Marxist regime in Chile against United States’ decision to combat the Chilean regime. (Id at 22.) ¶
Plaintiffs have not and do not now request that a court examine the propriety of the United States government’s policy towards Chile’s Marxist government, or that a court perform any sort of balancing test based on historical context and alleged national security concerns. ¶
Rather, Plaintiffs asked the District Court to determine the legality of the conduct of one individual United States government official as he plotted to kidnap a foreign official, gave support and arms to his kidnappers, and contributed to his death. ¶
These means are distinct from the policy they may support, and Defendants have failed to show why the two cannot be separated.
Query: “Legality”? “Means”?
Let’s see if I understand what you’re saying.
When Richard Nixon turned the mighty American Empire loose, on the democratically elected government of Chile — “one of the world’s oldest democracies” {copy, copy, copy, ditto} — his Track I was ostensibly “legal” under U.S. law.
Track I flooded that nation with journalists, working for mainstream print and broadcast media, but secretly too on the CIA/MI6 payroll. (We pay their U.K. paymaster and they pay our U.S. paymaster, so we can each lie with a straight face, that we don’t pay our own journalists, to lie to our own citizens, in our own media. –As I suppose).
These talented and experienced liars for hire, and like-minded ideologues, wrote and broadcast in Chile, in newspapers and on radio and TV stations in Chile, financially backed in secret by the CIA:
• lies (fictitious news stories; fictitious interviews with fictitious citizens),
• damn lies (interviews with pundits and officials on the secret CIA payroll; news reports of public demonstrations, speeches, disturbances, bought and paid for by CIA-paid operatives),
• and statistics (misleading and invented, including fictitious public opinion poll results, a CIA/MI6 speciality)
(to quote Winston Churchill, on the hierarchy of deceit)
• and opinion, both hysterical and reasoned, to suit different audiences.
Hoping to pressurize and sway the vote in the Chile Congress, away from installing Salvador Allende as President.
And Track I paid secret bribes, to members of the Chile Congress, to buy their votes.
And secretly financed the political campaigns of his opponents.
And secretly paid for crowds in the streets, their salaries, transportation, food, lodging, communications, radios, loudspeakers, newsletters, postage, posters, flyers, flags, and such.
As we saw the CIA do recently, in the Ukraine, and in Venezuela, although the intense efforts by George W. Bush, and the CIA and U.S. Military, to overthrow the Chavez government in Venezuela are now ongoing and still secret.
And threatened Chile government officials, that if Salvador Allende became President of Chile, in a free and fair democratic election, the United States would punish Chile, without mercy:
as the U.S. Ambassador put it to them (Sept. 21 1970), and later elaborated to the U.S. Congress, by invitation, in a 28-page letter (Oct. 23 1975) {1955kb.pdf} and testimony (Dec. 4 1975) {1600kb.pdf}.
And this meant too, of course, that all those key Chile government officials, including key army officers, on the secret CIA payroll, would have their secret pay stopped, and all their fringe benefits too (free paid junkets to the U.S.A., socializing with their U.S. buddies, and such).
And you’re saying, all of these “means” of Track I were ostensibly “legal” under U.S. law, because it’s not yet an international crime to bribe public officials; broadcast and publish lies; secretly finance political parties, newspapers, radio, TV; stir-up and finance public disorder and public demonstrations; and threaten and inflict economic punishment.
Or, more precisely, you don’t challenge these Track I means, because they have nothing to do with this lawsuit.
Directly. But indirectly they do, because they illustrate the sort of many and varied actions Richard Nixon could have had in mind, at that September 15 1970 meeting, and might have said so.
And not the criminal actions Henry Kissinger later masterminded, instead, in secret: Track II.
Track II, you’re saying, was not “legal” under U.S. law.
Because its “means” were different:
To incite, conspire, aid and abet, facilitate, finance, support, the violent overthrow of the democratically elected government of Chile, and install a military dictatorship in a coup.
An act of war.
And that’s not legal to do, under U.S. law, by the U.S. President, and his agents, acting on their own initiative.
Because this was a violent crime.
Except during war.
But to legalize war, and its otherwise violent crimes, Congress must vote for it, under U.S. law.
Which Congress did not do.
Richard Nixon, and his agents, kept Track II secret from Congress, because they all knew Congress would never agree to such a criminal war of aggression. At least the Congress of that era wouldn’t.
And so, the “means” of Track II remained a violent crime.
Even if Congress could have legalized it (under the laws of war), by voting for war. Or voting to incite and back others with that aim (the overthrow of the Chile government by non-democratic means). An act of war.
Which Congress did not do.
Congress is the sole voice of the sovereign, under the U.S. Constitution, to initiate offensive war.
The President has no vote.
And so, even if Richard Nixon and Henry Kissinger both lied to Congress, it makes no difference.
Because any orders Richard Nixon may have issued, purporting to authorize acts of war (such as inciting the kidnap/murder of René Schneider), are legally null and void, ab initio, under U.S. law, from the moment of their still-born birth, as if they had never been issued.
They exceed his “scope of employment,” as President.
Because that’s what the U.S. Constitution says:
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).
Overthrowing a foreign government, this is “political question.” Yes.
But who gets to answer that question, this is not a “political question.” No.
This is a legal question, laid to rest, long ago, by the Founding Fathers:
We transfered the Dog of War, the power of letting him loose, from the Executive to the Legislative body.
Thomas Jefferson to James Madison, letter dated Paris, September 6 1789 {image 912-919, at 918, transcribed} (syntax modified).
It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.
James Wilson, December 11 1787, The Debates in the Convention of the State of Pennsylvania, on the Adoption of the Federal Constitution, 2 Elliot's Debates 528 {LCCN: 78325363}.
Under the U.S. Constitution:—
• A Judge cannot enact a law, or order troops into battle.
• Congress cannot hire and fire Judicial Branch officials, or Executive Branch officials.
• And the U.S. President cannot direct a verdict in a lawsuit, or initiate acts of offensive war.
Is this what you’re saying? –CJHjr
As Plaintiffs stressed in their brief, the D.C. Circuit has established that courts may adjudicate claims challenging the legality of government officials’ implementation of foreign policy, even when review by the court could affect foreign affairs. DKT Memorial Fund, Ltd. v. Agency for Int'l. Development, 810 F.2d 1236, 1238 (D.C. Cir. 1987); see also Population Inst. v. McPherson, 797 F.2d 1062, 1068-70 (D.C. Cir. 1986) (holding that whereas attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514-15 (D.C. Cir. 1984), vacated on other grounds, 471 U.S. 1113 (1985), rev’d, 788 F.2d 762 (D.D.C. 1986) (holding the government’s construction and operation of a military training camp on a plaintiff’s private property in Honduras did not present a political question because the plaintiff did not seek to challenge the {p.5} lawfulness of the United States military presence, but rather whether the government could run military exercises on his private land when that land had not been lawfully expropriated).
The United States government has recently made clear that heinous human rights abuses committed by government officials are within the purview of the courts regardless of the national security context in which those crimes occur or the purpose the crimes are intended to serve. ¶
In 2004, the media widely publicized United States soldiers’ heinous treatment of prisoners at the Abu Ghraib prison in Iraq. ¶
Despite the fact that the crimes occurred within a context of national security, the United States government has investigated reported abuses and prosecuted those who committed them. See Final Report of the Independent Panel to Review Department of Defense Detention Operations, in the Abu Ghraib Investigations 2, 24-28 (Steven Strasser, ed., 2004) {5851kb.pdf, copy} {SuDoc: D 1.2:D 48/2/FINAL , OCLC: 56349752}.
Clearly, when United States officials are accused of committing human rights abuses, their actions must be investigated and violators must be appropriately punished, even if their actions involved national security. ¶
As Plaintiffs have already extensively briefed, the Judiciary branch is well equipped with manageable standards to adjudicate grave human rights abuses. (Br. for Appellants at 13-14.) ¶
Courts ¶
“cannot shirk this responsibility merely because [the] decision may have significant political overtones.” ¶
Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986).
Furthermore, Plaintiffs’ claims do not open the floodgates to judicial scrutiny of all policy decisions regarding the conduct of foreign affairs and covert intelligence activities. (Br. for Appellee at 24.) ¶
Plaintiffs allegations are narrowly limited to the actions that led to the death of General Schneider and involve extraordinary human rights abuses. ¶
Additionally, the events at {p.6} the heart of Plaintiffs’ case have been the subject of unprecedented inquiries by Congress and the Executive branch. ¶
The facts in the Complaint are taken from the results of these inquiries.
Defendants’ assertion that the Attorney-General’s certification that Defendant Kissinger was acting within the scope of his employment carries prima facie weight is incorrect and contrary to the case law in this Circuit. (Br. for Appellees at 33.) ¶
In Kimbro v. Velten, the D.C. Circuit agreed with the Third Circuit’s approach that the Attorney-General’s certification has prima facie effect, but added the caveat that ¶
“the statutory scheme [of the Westfall Act] does not really treat the certification as having any particular evidentiary weight.” ¶
30 F.3d 1501, 1509 (D.C. Cir. 1994). ¶
The D.C. Circuit has since reiterated that the certification carries no particular weight. Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) {55kb.pdf, 55kb.pdf} (holding that the district court’s affording of conclusive weight to the certification was contrary to Kimbro’s instruction that the district court “not really treat the certification as having any particular evidentiary weight...”).
The D.C. Circuit held in Stokes v. Cross that in order for the court to grant discovery and an evidentiary hearing, a plaintiff must ¶
“raise a material dispute regarding the substance of [the Attorney General’s] determination by alleging facts that, if true, would establish that the defendants were acting outside the scope of their employment.” ¶
327 F.3d at 1215 (emphasis added) {55kb.pdf, 55kb.pdf}. ¶
The Stokes court also held that ¶
“[b]ecause the plaintiff cannot discharge this burden without some opportunity for discovery, the district court may permit limited discovery and hold an evidentiary hearing to resolve a material factual dispute regarding the scope of the defendant’s employment.” ¶
327 F.3d at 1214-15 (emphasis added) (citations omitted) {55kb.pdf, 55kb.pdf}. {p.7}
Plaintiffs were entitled to discovery under the Stokes standard because they raised a material dispute as to whether Defendant Kissinger was acting within the scope of his employment and requested the necessary discovery to fully define their challenge. ¶
In one specific instance, Plaintiffs disputed that President Nixon’s instruction that ¶
“the necessary steps be taken to prevent Dr. Allende from becoming President of Chile” ¶
included the authorization to conspire to kidnap or murder General Schneider. (Br. for Appellants at 21.) ¶
In another instance, Plaintiffs pleaded that Defendant Kissinger’s actions did not meet the applicable standard for scope of employment because he ordered Chilean coup plotters ¶
“to continue their work of promoting a successful coup in spite of ‘other policy guidance’ that they may receive from other branches of the U.S. government.” ¶
(Pl. Opp. to Def. Mot. to Dismiss at 10; App. 106.) ¶
Plaintiffs pleaded that the record on the matter was incomplete and that further discovery was necessary but were denied the opportunity to conduct it on several occasions by the District Court. See Br. for Appellants at 21.
Defendants erroneously assert that the Westfall Act grants immunity for wrongful acts taken within the scope of employment ¶
“whether egregious or not.” ¶
(Br. for Appellees at 36.) ¶
This assertion is in stark contradiction to the legislative history of the Westfall Act. ¶
When enacting the Westfall Act, Congress expressly stated, ¶
“If an employee is accused of egregious misconduct, rather than mere negligence or poor judgment, then the United States may not be substituted as the defendant, and the individual employee remains liable.” ¶
H.R. Rep. No. 100-700, at 5 (1988) reprinted in 1988 U.S.C.C.A.N. 5945, 5949. {p.8}
Contrary to Defendants’ assertions, there is no need to create a “broader catch-all exception” or rewrite the Westfall Act to find that immunity does not apply to Defendant Kissinger’s actions. (Br. for Appellees at 37.) ¶
Congress’s intent is clear on the matter. ¶
To allow the Westfall Act to apply to egregious conduct would be to contravene the express will of Congress. (Br. for Appellants at 16-18.)
Defendants’ reliance on Ramey v. Bowsher to support their proposition that egregious conduct is subject to Westfall immunity is misplaced. ¶
Ramey dealt with sex discrimination in the workplace, conduct that the court did not describe as egregious, and thus did not touch upon this issue. Ramey v. Bowsher, 915 F.2d 731 (D.C. Cir. 1990).
Plaintiffs do not dispute that some illegal conduct can be within the scope of employment and subject to Westfall immunity. ¶
Whether or not Defendant Kissinger was acting within the scope of his employment under District of Columbia law is irrelevant when considering whether or not his conduct was egregious. ¶
It is the clear intent of Congress that the Westfall Act not apply to egregious conduct.
Defendants erroneously reason that Defendant Kissinger’s actions fell within the scope of his employment because his conduct was of the same general nature authorized by his employer. (Br. for Appellees at 33-35.) ¶
In support of their proposition, Defendants cite an executive order stating that 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. (Br. for Appellees at 35.) ¶
That executive order was passed in 1976, six years after Kissinger’s participation in the death of General Schneider, so it could not have defined the duties of the National Security {p.9} Advisor in 1970.
Furthermore, the executive order that Defendants reference was passed after a Congressional investigation into covert operations in Chile from 1963 to 1973. See 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 (1975) {13+349 pages, SuDoc: 94-1:S.RP.465, Serial Set: 13098-8, CIS: 75 S963-1, LCCN: 75603538, DL, WorldCat}. ¶
In part, its purpose was to ensure that covert operations complied with the law. See Exec. Order No. 11905 {copy}, 41 Fed. Reg. 7703 (Feb. 18, 1976) § 1 (written to ¶
“clarify the authority and responsibilities of the intelligence departments and agencies” ¶
and ¶
“to assure compliance with the law in the management and direction of intelligence agencies and departments of the national government”) ¶
(emphasis added).
A determination of whether Defendant Kissinger was acting within the scope of his employment turns on facts that have not yet been made available to Plaintiffs. ¶
For this reason alone, this Court should reverse and remand for discovery to begin.
The District Court held that because Defendant Kissinger was acting under direct orders of President Nixon, he was acting pursuant to United States law and could not have been acting under the color of Chilean law. Schneider v. Kissinger, 310, F.Supp. 2d 251, 267 (D.D.C. 2004). ¶
Plaintiffs challenge this holding on two bases: ¶
• first, that it is an inappropriate factual determination to conclude that Defendant Kissinger was acting under direct orders from the president based on the facts pleaded, and ¶
• second, that the fact that Defendant Kissinger may have been acting under U.S. law does not preclude his also acting under color of Chilean law through {p.10} his co-conspirators. ¶
(Br. for Appellees {sic: Appellants} at 22-24.) ¶
Defendants’ attempt to counter this second challenge fails. ¶
The cases they cite do not show that a defendant who operates under one color of law cannot operate under the color of another law temporarily, or be under the color of two laws at the same time. (Br. for Appellees at 38-39.) ¶
Defendants cite District of Columbia v. Carter, which simply clarifies that the District of Columbia was neither a state nor a territory for the purposes of 28 U.S.C. § 1983, and at no point stands for the proposition that a defendant may not simultaneously act under the color of two laws. 409 U.S. 418, 424-25 (1973). ¶
Next, Defendants cite a Sixth Circuit case, Strickland v. Shalala, for the proposition that an action taken by a federal official must always be under color of federal law, and cannot therefore be under color of another law. (Br. for Appellees at 39) (citing 123 F.3d 863, 866 (6th Cir. 1997) {22kb.txt}). ¶
Yet Defendants fail to state that the Strickland court also held that it had ¶
“joined a majority of circuits in recognizing that a federal official can act ‘under color of state law’ in certain circumstances” ¶
and that the ¶
“evaluation of whether particular conduct constitutes action taken under the color of state law[ ] must focus on the actual nature and character of that action.” ¶
Strickland, 123 F.3d at 866 {22kb.txt} (quoting Schultz v. Wellman, 717 F.2d 301, 304 (6th Cir. 1983)).
In support of their contentions, Defendants also cite President George H.W. Bush’s statement that the Torture Victims Protection Act, 28 U.S.C. § 1350, note, (“TVPA”) is not meant to apply to the United States Armed Forces or law enforcement operations. (Br. for Appellees at 38.) ¶
This statement is irrelevant to the present case since Defendant Kissinger is neither a law enforcement official nor a member of the U.S. Armed Forces, nor can the actions at the heart of this case be classified under either of those definitions.
While the D.C. Circuit has not addressed the precise issue of whether a government employee can be acting under the color of more than one law, other courts have held that {p.11} officials can serve as “dual-status” agents acting concurrently under color of federal and state law, and be held accountable under either or both. See Calhoun v. Doster, 324 F. Supp. 736, 739-40 (M.D. Ala. 1971) (holding that since plaintiff was serving under federal and state authority, any distinction between defendants’ state and federal positions was “blurred and artificial,” and “any distinction between ‘federal’ and ‘state’ is one of form, not substance”).
The District Court opinion cites no basis in the law to support its decision that Defendant Kissinger was not acting under color of Chilean law. Schneider v. Kissinger, 310 F.Supp. 2d 251, 267 (D.D.C. 2004). ¶
Defendants’ brief fails to find any such support or argue against Plaintiffs’ contention that Defendant Kissinger was acting under color of Chilean law through his Chilean co-conspirators. (Br. for Appellees {sic: Appellants} at 22-24.) ¶
Such a conspiracy is analogous to United States federal officials conspiring with state officials, where the entire conspiracy is actionable under 42 U.S.C. § 1983. See Knights of the Ku Klux Klan v. East Baton Rouge Parish Sch. Bd., 735 F.2d 895, 900-901 (5th Cir. 1984) ¶
(“Ordinarily, when federal officials conspire or act jointly with state officials to deny constitutional rights, the state officials provide the requisite state action to make the entire conspiracy actionable under section 1983.”) ¶
(citation omitted) (internal quotation omitted). See also Kletschka v. Driver, 411 F.2d 436, 448-49 (2d Cir. 1969); Lipsett v. University of Puerto Rico, 576 F. Supp. 1217, 1224 (D. P.R. 1983); Hauptmann v. Wilentz, 570 F. Supp. 351, 387 (D. N.J. 1983). ¶
Using § 1983’s analysis, as is required under the TVPA, it is possible that, just as a federal employee can be found to be acting under color of state law through a conspiracy with state officials, Defendant Kissinger can be found to be acting under color of Chilean law through his co-operation with Chilean co-conspirators.
Defendants’ digression into whether § 1983 applies to federal officers acting under federal law is irrelevant. (Br. for Appellees at 39-40.) ¶
Plaintiffs do not seek to hold Defendant {p.12} Kissinger liable under § 1983, but are merely following the instructions of Congress in drafting the TVPA that when determining whether a person was acting under color of foreign law, one must look to § 1983’s test for determining whether a party was acting under color of state law. (Br. for Appellants at 23.)
In defense of their argument, Defendants have only asserted Defendant Kissinger’s federal position and employment, which Plaintiffs clearly concede, without examining the actual nature and character of Defendant Kissinger’s actions to determine under which color of law those actions were taken. ¶
Further evidence is needed to determine the nature and character of Defendant Kissinger’s actions, and the extent or nature of the conspiracy with Chilean actors.
Defendants attempt to obscure these questions of law by implying that Plaintiffs ask the court to conclude that Defendant Kissinger was acting as an agent of the Chilean government. (Br. for Appellees at 41.) ¶
Plaintiffs have never alleged that Defendant Kissinger acted as an agent of the Chilean government — they have simply stated that Defendant Kissinger’s co-conspirators acted under color of Chilean law, and that under the terms and purpose of the TVPA, the color of foreign law status is imputed to the Defendant. (Br. for Appellants at 22-24.)
Defendants claim that Defendant Kissinger is entitled to qualified immunity because his conduct did not violate ¶
“clearly established statutory or constitutional rights of which a reasonable person would have known.” ¶
(Br. for Appellees at 41) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). ¶
The notion that torture and murder were not clearly prohibited in 1970 is outrageous. ¶
Defendants seek to hide behind the fact that the TVPA was not enacted in {p.13} 1970 to prove that there was no universal condemnation of these acts at the time. ¶
Plaintiffs have briefed at length the numerous other prohibitions on this same conduct that existed in 1970. 1 (Br. for Appellants at 25-26.) ¶
Furthermore, the “clearly established” standard of Harlow was not meant to be a rigid one, and the absence of a specific law on point does not necessarily grant immunity. (Br. for Appellants at 24-26.)
The District Court did not reach the question of whether the TVPA may be applied retroactively; however, the District Court implicitly found that the statute could be applied when it analyzed Defendant Kissinger’s liability under the statute. ¶
While this issue was not addressed in the Brief for Appellants, Defendants have cited it as a basis for affirming the lower court’s decision. ¶
Plaintiffs will briefly respond to the argument posed by Defendants.
Although the torture and extrajudicial killing of General Schneider took place nearly twenty years prior to the passage of the TVPA, it is proper to apply the statute retroactively in this case. ¶
The Supreme Court has held that when the language of a statute does not explicitly state that it applies retroactively, it must be analyzed to determine whether it can be applied to {p.14} events pre-dating its enactment. Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). ¶
The Supreme Court looks to whether the statute 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.” ¶
Id at 280. ¶
A statute that has any of these qualities would have no governing effect in cases prior to its enactment, absent a clear congressional intent favoring such a result. Id.
In enacting the TVPA, Congress stated that ¶
“[t]he TVPA would establish an unambiguous and modern basis for a cause of action that has been successfully maintained under an existing law, section 1350 of the Judiciary Act of 1789 (the Alien Tort Claims Act), which permits Federal district courts to hear claims by aliens for torts committed ‘in violation of the law of nations.’” ¶
H.R. Rep. No. 102-367 (I), 102nd Cong. 1st Sess. (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86. ¶
Clearly, Congress contemplated that liability already existed for such acts.
All of the jurisdictions that have contemplated retroactive application of the TVPA have found that the statute creates no new liability and therefore has no retroactive effect. See e.g., Alvarez-Machain v. United States, 107 F.3d 696 (9th Cir. 1996) {43kb.html, 56kb.html}; Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345 (S.D. Fla. 2001) {109kb.html, menu}; Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996); Xuncax v. Gramajo, 886 F. Supp. 162, 177 (D. Mass. 1995). ¶
These courts have held that the TVPA may be applied to acts that took place before its passage because it creates no new duties or liabilities.
Retroactive application of the TVPA in the present case is proper because the statute does not impair rights, increase liability or impose new duties on Defendant Kissinger. ¶
As previously briefed by Plaintiffs, the international community had condemned torture and summary execution for decades prior to the time of Defendant Kissinger’s actions. (Br. for Appellants at {p.15} 24-26.) ¶
Defendant Kissinger cannot claim that the kidnapping and murder of Gen. Schneider fell within a prevailing legal norm that authorized such an action. ¶
As Congress stated, there already existed a basis of liability under the Alien Tort Claims Act, 28 U.S.C. § 1350, for such actions.
Defendants’ argument that the TVPA increases liability since Defendant Kissinger would have been immune under the Westfall Act is misleading. (Br. for Appellees at 43.) ¶
Since the Westfall Act was not enacted until 1988, Defendant Kissinger could not have been immunized under this Act at the time of his tortious conduct. ¶
The only shield from liability that Defendant Kissinger could have anticipated in 1970 was common law qualified immunity, which was not a guarantee but was subject to judicial evaluation on a case-by-case basis. See Davis v. Scherer, 468 U.S. 183, 190-92 (1984) (reviewing the evolution of the test for qualified immunity of government officials.); see also Procunier v. Navarette, 434 U.S. 555, 562, 566 (1978). ¶
Because qualified immunity is not an automatic shield from liability, Defendant Kissinger’s argument that his liability is increased under the TVPA must fail. ¶
Therefore, in this case, the TVPA does not increase Defendant Kissinger’s liability, impair rights that he had at the time, or defeat any expectations of immunity, and should be applied.
Plaintiffs’ claim that the District Court erred in dismissing its case remains undiminished. ¶
Defendants’ arguments for why this case should not go forward fail. ¶
Defendants are not able to show that the District Court followed the correct procedure or was correct in denying Plaintiffs’ ability to begin discovery or proceed beyond the initial posture of this case. ¶
For the foregoing reasons, Plaintiffs respectfully request that this Court reverse and remand the District Court’s ruling. {p.16}
Dated: 1/10/05
Washington, D.C.
Respectfully submitted,
{Signature}
Michael E. Tigar
D.C. Bar No. 103762
American University
Washington College of Law
4801 Massachusetts Avenue, NW
Washington, D.C. 20016
(202) 274-4088 {p.17}
______________________
Certificate of Service
I hereby certify that on January 10th, 2005, I delivered by electronic mail and First Class mail a true copy of the foregoing Brief for Appellants to counsel for Defendants as follows:
Robert M. Loeb
United States Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, NW
Room 7268
Washington, DC 20530-0001
{Signature}
James B Cowden
1 Defendants also imply that a kidnapping in a foreign country directed by a federal official is no longer actionable after the Supreme Court’s decision in Sosa v. Alvarez-Machain. (Br. for Appellees at 42) (citing Sosa, 124 S.Ct. 2739, 2767-69 (2004)). ¶
This implication is incorrect and misleading for several reasons. ¶
First, Plaintiffs do not bring suit for kidnapping, but for Summary Execution, Torture, Cruel, Inhuman or Degrading Treatment, Arbitrary Detention, Wrongful Death, Assault and Battery, and Intentional Infliction of Emotional Distress. ¶
Second, the court in Sosa did not deal with kidnapping, but with arbitrary arrest, and found that the facts as pleaded by the plaintiff did not amount to a claim of arbitrary arrest. Sosa, 124 S.Ct. at 2769 ¶
(“[A] single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment violates no norm of customary international law ...”). ¶
Plaintiffs object to Defendants’ coloring of the facts as a mere kidnapping. ¶
The pleadings show that the murder of General Schneider occurred at the hands of Defendant Kissinger’s co-conspirators. ¶
Plaintiffs have not alleged anything less than this.
Source: Photocopy of a duplicate original (the Court’s file copy), scanned to PDF.
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Commentary: The murder of René Schneider.
This document is not copyrighted and may be freely copied.
Charles Judson Harwood Jr.
Posted Feb. 18 2005. Updated April 14 2008.
http://homepage.ntlworld.com/jksonc/docs/schneider-cadc-d15.html
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