The Clerk: Case No. 04-5199, Rene Schneider, et al., appellants v. Henry A. Kissinger, et al. ¶
Ms. Rótolo for the appellants, Mr. Loeb for the appellees.
Mr. Beydoun: Good morning, your honors. ¶
May it please the Court, my name is Ali Baydune (phonetic sp.) {Ali Abed Beydoun} and together with Michael Tigar and the student attorneys of the UNROW Clinic of the Washington College of Law, we represent the plaintiff-appellants in this matter; the late General Raúl Schneider {sic: René Schneider} and his family. ¶
I would ask the Court to please allow the student attorney, Ms. Laura Rótolo —
Judge Sentelle: I think we have the wrong name on the calendar on this —
Judge Henderson: No, he’s just introducing —
Judge Sentelle: Oh, I’m sorry. Excuse me; go ahead.
Mr. Beydoun: I’m just asking if the Court would please allow the student attorney, Ms. Laura Rótolo, to present arguments on behalf of the plaintiff-appellants?
Mr. Beydoun: Mr. Tigar is not here, unfortunately, this morning. He’s here in spirit, though. If the Court would please — thank you. {p.4}
Oral Argument of Laura Rotolo on Behalf of the Appellants
Ms. Rótolo: Good morning, your honors. ¶
Laura Rótolo for the appellant — the plaintiff-appellants. ¶
I would like to reserve one minute for rebuttal.
May it please the Court, at its core this case is about the very outer limits of the authority of the National Security Advisor. ¶
The National Security Advisor simply does not have the legal authority to target an individual and have him killed. ¶
We are here today because the District Court denied the plaintiffs their procedural rights to properly bring forth their case for why defending Kissinger’s participation in the murder of their father was unlawful.
I would like to focus on four points. ¶
First, the District Court’s procedural errors were harmful to the plaintiffs and alone, demand that the case be remanded. ¶
Second, this case is justiciable because the plaintiffs here are not asking the Court to pass judgment on whether U.S. policy was correct —
Judge Sentelle: I’m having a hard time with that argument.
Ms. Rótolo: Yes, your honor?
Judge Sentelle: It seems to me that that’s precisely what you’re asking us to do. No matter how bad this policy may have been, is it within the scope of the Court’s {p.5} authority to enter that part of the separation of powers called national security or foreign relations and tell the Executive, “Your policy was wrong.”
Ms. Rótolo: Your honor, the plaintiffs have pleaded repeatedly that we are not asking the Court to judge whether or not an attempted coup in Chile was correct. What we are asking the Court to do is to judge the actions of one individual, the National Security Advisor, who took it upon himself to implement the policy —
Judge Sentelle: Counsel, that’s not the actions of one individual. Mr. Kissinger — Dr. Kissinger was the Secretary of State and National Security Advisor. He’s the alter ego of the President in foreign affairs. This is the Executive Branch of government. It’s just something Mr. Kissinger did individually. He didn’t take off work and go down there and kill somebody. He did whatever he did in Washington, D.C. as part of the unitary executives — how can you say that’s the act of one person?
Ms. Rótolo: The National Security Advisor sent money and arms and communicated with the co-conspirators in Chile and —
Judge Sentelle: Whose arms and money did he send?
Ms. Rótolo: The pleadings are not clear, but he did conspire with the CIA to do that —
Judge Sentelle: They weren’t his, were they? {p.6}
Ms. Rótolo: Pardon?
Judge Sentelle: They weren’t his, were they?
Ms. Rótolo: No, they were not his personal arms and money.
Judge Sentelle: He was acting as a cabinet minister, was he not?
Ms. Rótolo: He was acting as an advisor to the President, and as an advisor to the President, he does not have the authority to target an individual and order that he be killed. And that the District Court imputed this policy to the Executive is not supported by the record. There’s nothing in the record specifically linking President Nixon to the order to kill Schneider.
Judge Sentelle: Assuming that your first complaint, paragraph 18, cannot be considered which might normally be the case, but here where you cite it in your own briefs below it probably is, but assuming it can’t be considered, don’t the pleadings and, in fact, the whole record establish that Dr. Kissinger was Secretary of State and National Security Advisor, right?
Judge Sentelle: He was not Secretary of State at that point?
Ms. Rótolo: I’m sorry, your honor? {p.7}
Judge Sentelle: He was not at that point Secretary of State?
Ms. Rótolo: He was not at that point.
Judge Sentelle: Okay. But he was the National Security Advisor. He was —
Ms. Rótolo: He was. He was. And the pleadings —
Judge Sentelle: Within the office of the President of the United States, right?
Ms. Rótolo: Absolutely. But there is nothing —
Judge Sentelle: And we normally don’t even invade that for FOIA purposes, let alone tort claims, do we? The Office of the President?
Ms. Rótolo: The President did not order this killing, your honor. There’s nothing —
Judge Sentelle: So what? If it’s within the Office of the President, we have a unitary executive, don’t we?
Ms. Rótolo: Yes, your honor. It is not within the office —
Judge Sentelle: And this is an elbow appointment of the President. This is somebody within the President’s office. What does it matter whether there’s — one would not expect, unless one had the Nixon tapes or the Johnson tapes that we would ever know what the President and the closest advisors actually exchanged, but why does it matter if it comes from the Office of the President whether it was him {p.8} personally or the NSA?
Ms. Rótolo: If I may, I’d like to address that with two points. First, that the President himself does not have the authority during peace time to order anybody to be executed. Secondly, nothing in the pleadings show that he actually made that order. So, the Office of the President is not automatically given to the National Security Advisor unless the President makes that order.
And if this were — if we were bringing a case against President Nixon here today with the facts that we have on the pleadings, we would not even have a prima facie case against him because there is no specific link between Nixon and the Schneider assassination. There is nothing — there’s no document where he says the word “Schneider” or he hears the word “Schneider”. This was a plan that was taken on by Defendant Kissinger alone with the help of a few conspirators and we cannot impute that plan to the Executive as a whole. Thank you, your honor.
Also —
Judge Sentelle: Do you have any case where someone similarly situated to Dr. Kissinger has been held liable in tort for something committed in the course of international affairs?
Ms. Rótolo: No, your honor. But this is one of the most notorious cases in our recent history, so there would be {p.9} no parallel.
Judge Sentelle: Do you have any case in our non-recent history where that’s ever occurred, counsel?
Ms. Rótolo: Perhaps, your honor. There is no parallel. There is no exact parallel to this. But this circuit —
Judge Sentelle: There is no case holding someone in this position liable in tort, right?
Ms. Rótolo: Correct.
Judge Sentelle: Thank you.
Ms. Rótolo: This Circuit has drawn a specific line between policy and the implementation of policy, and it has said that the implementation of policy is justiciable. That’s precisely what we have here; is the implementation of policy. The United States — the defendants have never claimed that it was the policy of the United States to assassinate anybody. The policy was to foment a coup and that was carried out — that was implemented in many different ways. And this defendant chose to implement it in an illegal way that went far beyond the scope of his authority. We have a government of limited powers and the Executive — Executive officials cannot simply invent powers that are not given to them by a law, especially when they infringe on such fundamental rights.
I would like to move on, your honor, to the Torture Victims Protection Act. The Torture Victim Protection Act{p.10} does provide a proper remedy for the plaintiff. The District Court misunderstood the color of foreign law requirement of the TVPA. Congress, when it passed the TVPA, told us that in order to determine who is acting under color of foreign law that we must look to the analysis of 42 U.S.C. 1983. That analysis tells us that a person can be acting under more than one color of law. For example, federal officials can be acting under color of state law.
If we use that analysis in the Torture Victims Protection Act, we can see that a United States official can be acting as under the color of Chilean law. And the standard here is whether or not the person was acting as a willful participant. Here, the defendant sent arms, sent money, communicated with the co-conspirators, and has not challenged that he was a willful participant in this action. Because he was a willing participant, he can be held to be acting under color of foreign law.
Judge Rogers: What’s the theory there?
Ms. Rótolo: The theory that he was acting under color of foreign law?
Judge Rogers: Yeah.
Ms. Rótolo: That he was acting as a co-conspirator with the Chilean actors.
Judge Rogers: But acting under color of Chilean law because he was, what, an agent of the government? {p.11}
Ms. Rótolo: No, your honor. It’s not required that he be an agent of the government. It’s simply required that he be acting together with agents of the government, which the pleadings show that he was.
This Court has analyzed this issue very recently in Williams v. United States{396 F.3d 412 (D.C. Cir., No. 03-5316, Jan. 25 2005)}, where a federal official was analyzed to be acting or not acting under color of state law. Like that federal official, Defendant Kissinger can be acting under color of Chilean law because his co-conspirators were acting under color of Chilean law as well.
To move on to the Westfall issue, your honors —
Judge Rogers: I thought the allegation was that there were non-government Chilean people with whom he was interacting.
Ms. Rótolo: No, your honor. They were generals —
Judge Rogers: They were trying to get rid of government people.
Ms. Rótolo: They were gen — one was a general, one was a retired general and they did use people — other military officials who were part of the Chilean government at the time. Thank you.
But the Westfall Act here does not apply to defending Kissinger because his acts were egregious. The Westfall Act was never meant to cover egregious acts such as murder and torture, which we have alleged here. Congress told us when it {p.12} passed the Westfall Act that it was not meant to egregious action — not meant to cover egregious action.
Judge Sentelle: Let me ask you a question about what Judge Rogers was inquiring into there. Is it really logical to say that people who were engaged in the staging of a coup to bring down a government were acting under color of law?
Ms. Rótolo: Yes, your honor. Color of law —
Judge Sentelle: It is?
Ms. Rótolo: Yes. Color of law is a broad analysis and it doesn’t mean —
Judge Sentelle: Sure it’s a broad analysis —
Ms. Rótolo: Yes.
Judge Sentelle: — so what?
Ms. Rótolo: For example, an off-duty police officer can be acting under color of law.
Judge Sentelle: If he’s trying to bring down the government that sits in the area and the jurisdiction in which he’s acting, he’s acting under color of law?
Ms. Rótolo: It’s a factual analysis and there are many —
Judge Sentelle: Yeah, and the facts of this case as you allege them, these people were a coup. They not only were not acting under color of law, they were attempting to overthrow the lawful authority, weren’t they? {p.13}
Ms. Rótolo: They were, but they were still using the auspices of the Chilean government. They were generals using the resources of the Chilean government that were available —
Judge Sentelle: That’s a very different question. They’re using the resources of the government. They could have stole them. Would that make them acting under color of law if they’d stolen guns from the government?
Ms. Rótolo: It could. And it is a factual analysis —
Judge Sentelle: It could?
Ms. Rótolo: We have plead that they were acting under color of Chilean law, and the District Court must accept those allegations as we have plead them. It is a factual analysis and we were never given the opportunity to conduct discovery or present any more facts regarding the color of law analysis.
Judge Sentelle: Your time is actually up. We’ll give you a couple of minutes for rebuttal. Thank you, counsel.
Ms. Rótolo: Thank you, your honor.
Oral Argument of Robert M. Loeb, Esq. on Behalf of the Appellees
Mr. Loeb: May it please the Court, my name is Robert Loeb from the Department of Justice, and I represent {p.14} the defendant-appellees here, Dr. Kissinger and the United States of America.
The District Court here correctly held that the plaintiff’s claims here are all non-justiciable under the Political Question Doctrine. While the plaintiffs argue here their claims don’t pertain to foreign policy, as the Court has recognized here, the assessment of their claims all turns on the assessment of the alleged wrongfulness of the decision which they even admit — the decision of the President to support the attempted military coup in Chile in 1970. They dispute here this morning in their briefs about whether the President knew or was particularly involved in the kidnaping of General Schneider or the plan to kidnap General Schneider, but they don’t dispute the fact that the President, in fact, ordered Dr. Kissinger to support the military coup and to use all necessary means to do so and to do so quickly.
They argue that the implementation is a separate issue. But both the decision to support the coup and how to support the coup all turn on evaluations of matters of foreign policy and national security about the threats to the United States from a new communist foothold; a threat of new communist foothold in 1970 taking place in this hemisphere.
In Baker v. Carr, the Supreme Court said not all matters that touch upon foreign policy are exempt from judicial review. But as the District Court here, the claims don’t {p.15} really touch upon foreign policy. They really revolve upon foreign policy matters. The foreign policy decision is really inextricable with the judgment of the wrongfulness of the death of General Schneider.
And for that reason, this Court should affirm the District Court’s threshold ruling that the matter is just simply non-justiciable under the political question doctrine.
As to these other matters, the alternative grounds the Court need not even get to, but as to the color of foreign law issue, I think it’s helpful to look at the 1983 precedent. There, the analysis is for — color of state law is whether the defendant possesses authority by virtue of state law. Well, there’s no real argument here or tenable claim that Dr. Kissinger possessed his authority as Senior National Security Advisor by virtue of Chilean law.
And even as to the— to courts which have held that federal actors can sometimes be acting under state law — which we disagree with — but if you even take that as a given—
In cases where the federal government directs a federal official to arrest somebody, the courts hold—
example, in Billings v. U.S., a 9th Circuit case {57 F.3d 797 (9th Cir., No. 94-55013, June 12 1995)}
—hold, that it’s the state actors, acting under federal law.
Not vice versa.
So, when there’s a so-called conspiracy — where the federal government is directing the state officials to act — it’s considered, that those state officials are acting under federal law. {p.16}
It’s similar here, even to the extent you accept their allegations, about Dr. Kissinger trying to direct the military coup in Chile.
You wouldn’t say that Dr. Kissinger, in his role as Senior National Security Advisor, is acting under Chilean law.
You might say that they are acting in some way as the arm of the U.S. government in doing so.
But not vice versa.
The District Court also properly rejected their arguments regarding the Westfall Act. Plainly, Dr. Kissinger acted within the scope of his employment and I’ll address —
Judge Sentelle: Do you — if we go with the political question theory, you don’t need the Westfall Act analysis, do you?
Mr. Loeb: No. Our argument is the Court should reach any of the additional issues; that all the other issues are entwined with that.
Judge Sentelle: Do you know of any case where the Westfall Act has been held to apply to someone in Executive Office — an elbow appointment or a cabinet minister?
Mr. Loeb: Where it’s been held to apply —
Judge Sentelle: The argument by the other side — this is not a surprise to you — is the Westfall Act doesn’t go up to acts by persons of this level, making this kind of — committing this kind of action. Do you know of any case that contravenes that argument? {p.17}
Mr. Loeb: Not offhand, that someone to the level —
Judge Sentelle: Well, it’s not offhand. They raised this argument in their brief. You’re not being asked an offhand question.
Mr. Loeb: They argue because the acts were so egregious that they’re not covered by the Westfall Act. Maybe I’m mistaken about that —
Judge Rogers: No, they also have an argument that the legislative history is Congress is really only concerned with low level federal employees.
Mr. Loeb: Well, they define — the definition in the Westfall Act covers all federal employees. There’s no — the plain language is clear that —
Judge Sentelle: Well, there’s a lot of places in the law where appointees of this sort are not referred to as employees. They’re appointees, officials. Employees is a word that has broad and narrow definitions and I ask you if you know of any place the Westfall Act has been construed to include persons of the level of Dr. Kissinger as National Security Advisor.
Mr. Loeb: Well, I know it has been applied regularly to officials at all levels and —
Judge Sentelle: Counsel, can you give me a case or not?
Mr. Loeb: I cannot give you — {p.18}
Judge Sentelle: Your answer is no and you’ve had all these months, is that correct?
Mr. Loeb: That — frankly, your honor, I didn’t treat that as a serious issue because the definition does — is so sweeping. You know, if the Court wants further briefing on the issue of —
Judge Sentelle: No, the Court doesn’t want further briefing. You’ve had plenty of chance on that.
Mr. Loeb: But the purpose of the Act actually meshes with the — our claim about non-justiciability. The Congress believed that certain matters are not —
Judge Sentelle: But it’s perfectly possible to argue that you don’t need the Westfall Act, and that Congress didn’t include these officials because they didn’t need it. That’s a perfectly legitimate argument. But I’m trying to find out if you’re serious about the proposition that the Westfall Act does apply.
Mr. Loeb: It applies very broad — our argument, your honor, is that it applies very broadly and there’s no need to get into common law immunities as we argue, but also absolute immunity under common law. And the District Court found there was no need to get into that because the Westfall Act itself found that all acts of federal officials — and there’s really no basis in the statute for slicing the different, you know, levels of employment — are covered by {p.19} the immunity. That the proper defendant in those cases is the United States and not the government official. And Congress in the Westfall Act and the federal tort —
Judge Sentelle: Suppose the Westfall Act had never been passed. Would you then say this suit could be brought?
Mr. Loeb: Well, it would be a question under —
Judge Sentelle: Against Dr. Kissinger.
Mr. Loeb: It would be a question under then the common law doctrines about whether there’s absolute immunity as him being an advisor to the President or as to whether there is immunity for discretionary actions or not under the Supreme Court Westfall case. But the Supreme Court reversed that case — the Congress reversed that decision by enacting the Westfall — was plainly the purpose of the statute there.
Judge Sentelle: Mm-hmm, and what were the claims in Westfall?
Mr. Loeb: I think they also involved high ranking officials, your honor, but I can’t — I can go back to the — offhand to the facts of the Westfall case as to whether they were cabinet members or not offhand. I’m sure —
But the purpose of the — of the Westfall Act was to take off the table of whether they were acting in a discretionary fashion or not or whether their actions were egregious or not, but if they were acting within the scope of their employment, {p.20} Congress made a very broad statement that the proper and exclusive remedy is against the United States of America.
And then Congress went on further in the Tort Claim Act to say is when the claims are arising in foreign countries, those claims are excluded under the Federal Tort Claim Act, because those really are not proper for the judiciary to decide. So, there is a broad statement here that claims are generally — for matters brought within the scope of employment, should be brought against the United States. As to claims arising in the foreign countries, they fall in the foreign country exception and really are not justiciable, which mesh with our threshold argument here of not justiciability.
These are claims which involve — all turn upon foreign affairs powers, and whether you’re looking under the Westfall Act or you’re looking under the Tort Claim Act or you look under common law immunity, all those doctrines support the notion that a court should not be involved in examining claims arising — revolving around foreign policy decision.
Judge Henderson: Do we have the certification by the DOJ Civil Division in the record?
Mr. Loeb: You do, your honor. It’s the exhibit following our Motion to Dismiss in the Joint Appendix. I can give you the page, but it’s in the Appendix —
Judge Henderson: Is there anything in there that {p.21} implies that there’s anything unusual in the certification —
Mr. Loeb: No, your honor.
Judge Henderson: — considering that it was a certification of high level official.
Mr. Loeb: It is a — it’s your typical, I think, sort of boilerplate finding that Dr. Kissinger under the allegations here, which include that he was Senior National Security Advisor, was at all times —
Judge Sentelle: Would it interest you to learn that the Westfall Act involved the supervisor of an Army depot for the negligent storage of toxic ash? The Westfall case.
Mr. Loeb: Okay, your honor.
Judge Sentelle: Hardly a high official of the level we’re discussing here.
Mr. Loeb: But it — the principle is the same in that — but prior to the Westfall Act, we had a common law immunity and the Supreme Court was now basically shifting that doctrine to make it turn on whether it was discretionary or non-discretionary actions, and the Congress rejected that in a very blanket statement saying the exclusive remedy for all acts and omissions by government employees is against the United States government. Those — the principles that support that immunity for low-ranking officials certainly applies in spades with a high-ranking official where you certainly don’t want to court second guessing those matters {p.22} and it’s even more appropriate as to the high-ranking officials that those claims be brought against the United States of America where the claims revolve around facts and claims that arose during the scope of the employment of the official.
Judge Sentelle: The difference it may make is that if we’re talking about the political question defense, it can’t be brought against anybody.
Mr. Loeb: That it can’t?
Judge Sentelle: From the very beginning it couldn’t be brought against anybody; you wouldn’t need the Westfall Act if your political question theory works, right?
Mr. Loeb: That’s true, your honor, but the Westfall Act also turned — you know, covers your mundane slip and fall kind of cases as well.
Judge Sentelle: There’s no question but what the Westfall Act covers that.
Mr. Loeb: Right, well that —
Judge Sentelle: That’s what the Westfall case was essentially; a slip and fall category.
Mr. Loeb: Except Dr. Kissinger, in his capacity as Senior National Security Advisor, is driving along and knocks into somebody, as to whether that’s a tort or not —
Judge Sentelle: He wouldn’t be conducting foreign policy then, would he? That wouldn’t be a part of his conduct {p.23} of foreign policy, right?
Mr. Loeb: No, but it would be — it’s still either within his job — his employment he’s within or he’s not.
Judge Sentelle: Okay. Your time is up now, too, unless my colleagues have further questions.
Mr. Loeb: Thank you, your honor. We ask the District Court be affirmed.
Judge Sentelle: I’ll give you two minutes for rebuttal.
Oral Argument of Laura Rótolo on Behalf of the Appellants
Ms. Rótolo: Thank you, your honor. Just two issues I’d like to respond to. First, my counsel said that the certification by the Attorney General was a boilerplate certification. That’s exactly correct. It’s a boilerplate certification. We don’t know what facts the Attorney General looked at when he — or, when she actually at the time made that certification. And the Supreme Court has said that it is reviewable by a court. And we have not been able to get any discovery. We’ve — not even limited discovery. We’ve raised a material issue that he was not acting within the scope of his employment and we’ve not been able to properly contest that under the Kimbro and Stokes standards of this Circuit {55kb.pdf, 55kb.pdf}.
The second issue is that also the idea of all necessary means was mentioned, and to assume — so the District Courts {p.24} have assumed that Nixon’s order to take all necessary means to foment a coup included an implicit authorization for the National Security Advisor to target an individual and have him killed is unreasonable. It’s procedurally incorrect because it’s an inference that —
Judge Sentelle: You know, assuming you’re correct, that doesn’t necessarily establish that it’s adjudicable. You know, the Nixon administration, for example, did lots of unreasonable and unlawful things, but a lot of them were cured by impeachment and the next election rather than by going to court.
Isn’t this the level of wrong that’s usually cured by impeachment or the next election, rather than the sort that the courts have jurisdiction for?
Ms. Rótolo: Well, our — my clients, your honor, are aliens and they do have a right to bring a case for redress for their harms in this country. They cannot vote anybody out of office and the Alien Tort Claims Act, among other laws, gives them the ability to come to these courts for redress of their injuries.
So —
Judge Sentelle: Okay, thank you — counsel, I’m sorry. Go ahead.
Ms. Rótolo: The all necessary means statement — procedurally it was incorrect for the District Court to make {p.25} that inference in favor of the defendants. A reasonable inference in favor of the plaintiffs would have been that that authorization did not include the authorization to do illegal and egregious acts. And certainly, it is also legally wrong.
And that’s my time. Thank you, your honors.
(Recess.)
______________________
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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).
