Full-text: December 17 2001 Schneider, 310 F. Supp. 2d 251 (March 30 2004), subsequently, 412 F.3d 190 (No. 04-5199, June 28 2005) (U.S.-Chile, murder of René Schneider, Oct. 22 1970).

C.
Torture Victim Protection Act (“TVPA”)

As explained above, the vast majority of courts have held that violations of customary international law are actionable in U.S. courts under the ATCA. Any contrary view expressed in Tel Oren and relied upon by Defendants was directly repudiated by Congress with the enactment of the TVPA. Islamic Salvation Front, 993 F.Supp. at 8 {178kb.pdf} {dismissed, March 31 2003: 32kb.pdf}; see also Abebe-Jira, 72 F.3d at 848 {15 kb txt, 21kb.pdf} (“In enacting the TVPA, Congress endorsed the Filartiga line of cases”); Kadic, 70 F.3d at 241 {72kb.html, 100 kb rtf} (citing H.R. Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86, for the proposition that codification of Filartiga was necessary in light of the skepticism expressed by Judge Bork’s concurrence in Tel-Oren).

The TVPA was expressly created by Congress to carry out the purposes of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (ratified by the Senate on October 27, 1990); see also H.R. Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991). ¶

This Convention defines torture as:

Convention against Torture, 1465 U.N.T.S. 85, 113, Art I. {p.27}

Similarly, Article 7 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force in the United States, Sept. 8, 1992) (“ICCPR”) states that ¶

The comments to Article 7 further state that ¶

and that those ¶

Article 3 of the ICCPR provides that ¶

Article 6 of the ICCPR further provides that ¶

Thus, the question as to whether torture and extrajudicial killings constitute violations of customary international law has been well settled by Congress’ enactment of the TVPA.

i.  The claims under the TVPA are actionable under customary international law

Even if Congress had not enacted the TVPA, torture, kidnapping, and extrajudicial executions would still constitute violations of customary international law as interpreted today. Courts must interpret international law under the ATCA as “it has evolved and exists among the nations of the world today.” Kadic, 70 F.3d at 238 {72kb.html, 100 kb rtf}; see also Tel-Oren, 726 F.2d at 777 (“[T]he ‘law of nations’ is not stagnant and should be construed as it exists today among the nations of the world.”) (Edwards, J. concurring); Filartiga, 630 F.2d at 881 (same); Islamic Salvation Front, 993 F.Supp. at 8 (same) {178kb.pdf} {dismissed March 31 2003: 32kb.pdf}. {p.28}

Therefore, since the United States ratified both the ICCPR and the Convention Against Torture in 1992 and 1990, respectively, and since there is a consensus among the nations of the world that such crimes are actionable under any judicial system, then it is clear that the claims of torture, kidnapping, and extrajudicial execution are actionable violations of customary law as interpreted today.

ii.  “Under Color of Law” is a substantial issue of material fact

Despite these well-settled principles of international and domestic law, Defendants nevertheless argue that the Complaint states no cognizable claim against Mr. Kissinger and Mr. Helms under the TVPA. 16  ¶

However, the TVPA does imposes liability upon individuals acting ¶

TVPA § 2(a), 102 Stat. at 73. ¶

Any dispute as to whether the acts alleged in the Complaint constitute an act “under actual or apparent authority, or color of law of any foreign nation” is a material fact improper for resolution at this preliminary stage. See Islamic Salvation Front, 993 F.Supp. at 9 (declining to determine a color of law issue with respect to TVPA jurisdiction at the preliminary stage because of a factual dispute) {178kb.pdf} {dismissed March 31 2003: 32kb.pdf}.

It is the Defendants’ conduct and not strict mechanical standards that are properly the focus and emphasis in analyzing claims of torture and extrajudicial executions. Kadic, 70 F.3d at 245 {72kb.html, 100 kb rtf}. ¶

Whether an individual is a state, non-state, or colorable-state actor depends on a factually based test. Id. ¶

The Kadic court noted that the proper inquiry is whether the individual in question “exceeded internationally recognized standards of civilized conduct.” Id. ¶

It is beyond {p.29} dispute that kidnapping and extrajudicial killing exceed internationally recognized standards of civilized conduct.

Additionally, in construing the terms “actual or apparent authority” and “color of law” courts are instructed to look to principles of agency law. See H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87. ¶

Therefore there is a substantial issue of material fact as to whether the kidnapping and death of General Schneider was the result of a colorable conspiracy between Defendants Kissinger and Helms and two extreme factions of the Chilean military. Compl. ¶¶ 24-45. ¶

These two groups of the Chilean military were acting under color of Chilean law and with the support and collaboration of Defendants. ¶

Accordingly, Defendants’ motion to dismiss should be denied in order to address this substantial issue of material fact.

iii.  Defendants’ interpretation of the TVPA is contrary to Congressional intent and international law

Additionally, Defendants’ interpretation of the TVPA is contrary to the Congressional Record of the TVPA, the Vienna Convention on the Law of Treaties, the United Nations Charter, the Convention Against Torture, and the ICCPR.

Defendants would have this Court adopt a tenuous and unnatural interpretation of Congress’ intent in enacting the TVPA. Defendants’ view requires United States courts to solely and exclusively protect aliens from torture by foreign officials, instead of requiring precisely what the title says: protect victims of torture. 17  This “defense” is similar to that raised by the Gaullist politician Maurice Papon in his French trial for aiding the Nazis. He said that he was {p.30} not a Nazi. No matter, said the French courts. Even if one has to be a Nazi to be guilty of war crimes under French law, one who aids and abets Nazis is as guilty as they are. This same principle applies in American law. If an offense can only be committed by someone having a particular qualification, one may be an accomplice without possessing that qualification. To take an example familiar to this Court (and to the Justice Department), it is a crime for a bank employee to steal or misapply bank funds. A non-employee may nonetheless be guilty of aiding and abetting. See, e.g., United States v. Morrow {87kb.html}, 177 F.3d 272 (5th Cir. 1999) (mobile home sales representative aided and abetted bank vice-president).

In fact the introduction language to the statute itself states that the TVPA is “[a]n Act to carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.” The Congressional intent in enacting the TVPA is clear. The obligation of the United States to protect against and provide a remedy for acts of torture and extrajudicial executions is based, inter alia, on the Convention Against Torture, and the ICCPR. It is frankly absurd to claim that the TVPA is a U.S. statute intended to make sure these obligations are observed by other nations and not by the United States itself.

If, as Defendants claim, ¶

it is because Congress never imagined United States officials would commit acts such as those complained of in the instant action, much less that they would claim to do so in their “official capacity.” ¶

The legislative history of the TVPA clearly demonstrates the United States’ strong commitment to protecting people from torture and extrajudicial killing and providing a remedy for such flagrant abuses of fundamental human {p.31} rights. See H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87 ¶

iv.  Defendants’ interpretation of TVPA is contrary to international law

Defendants’ interpretation of the TVPA also violates Article 103 of the United Nations Charter, which states that states may not set forth rights and obligations which conflict with those obligations a member-state has undertaken under the UN Charter. ¶

Article 26 of the Vienna Convention {458kb.pdf} expresses one of the most fundamental principles of public international law, pacta sunt servanda (“agreements of parties must be observed”): ¶

This obligation of parties to observe the provisions of a treaty to which they have consented to be bound is closely related to a second fundamental principle underlying international law: good faith performance. Good faith performance is required regardless of any conflicting domestic law.

Therefore, Defendants’ interpretation of the TVPA is erroneous and contrary to clearly expressed Congressional intent and international law. Alternatively, Plaintiffs assert that there is a substantial issue of material fact as to whether the kidnapping and death of General Schneider was the result of a colorable conspiracy between Defendants Kissinger and Helms and two extreme factions of the Chilean military. {p.32}

v.  TVPA can be applied retroactively

Defendants incorrectly claim that ¶

Motion p.35. ¶

On the contrary, it is well established that the TVPA can be applied retroactively because the statute does not ¶

Estate of Cabello, 157 F.Supp.2d at 1362 {109kb.html, menu}. ¶

In Cabello the court found that the commission of extrajudicial killing and torture, inter alia, ¶

Id. at 1366 {109kb.html, menu}; see also Xuncax, 886 F.Supp. at 177 (concluding there has been a universal prohibition against torture since the Universal Declaration of Human Rights was written in 1948, and also concluding that retroactive application of the TVPA as the law in effect at the time of decision is proper); Filartiga, 630 F.2d at 880 (holding that international law has long condemned and prohibited torture). ¶

Furthermore, the court in Cabello stated that ¶

Cabello, 157 F.Supp.2d at 1362 {109kb.html, menu}; see also Alvarez-Machain v. United States, 107 F.3d 696, 702 (9th Cir. {43kb.html, 56kb.html} 1996) (recognizing that ATCA provided aliens with “the right to adjudicate torture claims” in federal court and that TVPA “does not impose new duties or liabilities on defendants”). {p.33}

It is therefore clear that the TVPA can be applied retroactively, because, among other reasons, the violations alleged herein involve an area of international law in which standards and norms have long been well-defined

Plaintiffs emphasize that the claims stated in the complaint are fully cognizable. There has, without question, been a violation of the law of nations, as defined by legal scholars, confirmed in international conventions to which the United States is a party, and codified in United States law. ¶

For all the reasons stated above, Plaintiffs’ claims under the Torture Victim Protection Act are cognizable and also satisfy the § 2679(b)(2)(B) exception to the Westfall Act. ¶

Therefore, even pursuant to the Westfall Act, Defendants Kissinger and Helms are not immune from suit.

V.
Federal Common Law Does Not Displace District of Columbia Law

Notwithstanding the Supreme Court’s clear holding in Mitchell v. Forsyth, supra, and its repeated statements that federal common law will displace state law only in a very “few and restricted instances,” Atherton v. FDIC, 519 U.S. 213, 225 (1997), defendants nonetheless assert that Messrs. Kissinger and Helms are entitled to absolute immunity under District of Columbia law for their roles (a substantial portion of which occurred in the District of Columbia) in the abduction and murder of General Schneider because imposing liability in such circumstances would interfere with the government’s ability to “get its work done.” Memo. at 27. ¶

Under this rationale, states would essentially be precluded from ever applying their own laws — regardless of the egregiousness of the conduct at issue — to federal officials, as long as the officials were purportedly acting to further the work of the government. ¶

Defendants’ sweeping claims of immunity are breathtaking in scope, but they are also utterly unsupported by precedent and thus ultimately unavailing. {p.34}

To support their claim of absolute immunity, defendants rely on Boyle v. United Technologies Corp., 487 U.S. 500 (1988), in which the Supreme Court held that state law may be displaced by federal common law when two conditions are met: ¶

id. at 507 (internal quotations and citations omitted). ¶

Neither of these conditions is met here.

First, this case does not involve a “uniquely federal interest,” but instead presents tort claims of the kind routinely reviewed by courts in the District of Columbia. 18  Although defendants correctly note that the Boyle Court identified “the civil liability of federal officials for actions taken in the course of their duty” as an area of “peculiarly federal concern, warranting the displacement of state law,” id. at 505 (emphasis added), Plaintiffs’ Complaint charges defendants with responsibility for, inter alia, the kidnapping and murder of a foreign military leader. ¶

As Plaintiffs have already discussed, see supra at Part I, “Certification of Scope of Employment Improper,” such conduct simply cannot and does not fall within the “official acts” or “duties” of either the National Security Advisor or the Director of Central Intelligence. 19  {p.35}

Because the conduct challenged in this case goes well beyond either the individual defendants’ official acts or duties, the “uniquely federal interest” necessary to displace state law with federal common law is absent. ¶

Defendants’ reliance on the bland and general statement that, like the work of the civilian defense contractor charged with negligence in its design and repair of military equipment in Boyle, plaintiffs’ lawsuit “plainly implicates the government’s ability to ‘get its work done,’” Memo. at 27, cannot camouflage the shortcomings of defendants’ argument. ¶

The Boyle Court cited this “interest in getting the Government’s work done,” 487 U.S. at 505, as the basis for its extension of the “uniquely federal interest” from “an official performing his duty as a federal employee” to “an independent contractor performing its obligation under a federal procurement contract,” id. ¶

The Court’s statement provides no support, however, for defendants’ efforts to extend Boyle to include civil liability for federal officials acting outside the scope of their authority within the “few and restricted instances” of “uniquely federal interests” warranting displacement of state law. ¶

Moreover, under the defendants’ theory, virtually any conduct that was outside the scope of a federal official’s authority but nonetheless was alleged to implicate the government’s interest in “getting its work done” could constitute a “uniquely federal interest.” ¶

This plainly cannot be the case.

Defendants do not identify, as required by Boyle, any specific conflict between “the government’s ability to ‘get its work done’” and the application of District of Columbia law to defendants’ conduct. ¶

Rather, they simply move on, alleging that displacement of D.C. law is necessary because plaintiffs’ lawsuit “implicates another, more particular area of uniquely federal interest — the conduct of our nation’s foreign affairs.” Memo. at 28. ¶

Defendants rely on {p.36} a line of cases, from Hines v. Davidowitz, 312 U.S. 52, 63 (1941), and United States v. Pink, 315 U.S. 203 (1942), to Zschernig v. Miller, 389 U.S. 429 (1968), and Crosby, 530 U.S. 363, in which the Supreme Court has upheld the federal government’s exclusive right to conduct the nation’s foreign relations.

Once again, the cases on which Defendants rely are inapposite. ¶

To the extent that cases such as Hines, Pink, Zschernig, and Crosby present a “uniquely federal interest,” 20  the interest articulated in these cases is not merely the federal government’s interest in conducting foreign relations per se, but rather the federal government’s interest in an exclusive right to conduct foreign relations in order to ensure that the nation speaks with “one voice” and presents a unified foreign policy to the outside world. See, e.g., Crosby, 530 U.S. at 366 (noting that differences between federal and Massachusetts Burma sanctions laws “compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments”); Zschernig, 389 U.S. at 441 (“The Oregon law does, indeed, illustrate the dangers which are involved if each State, speaking through its probate courts, is permitted to establish its own foreign policy.”); Pink, 315 U.S. at 232 (“If state action could defeat or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power.”); Hines, 312 U.S. at 66 (“It cannot be doubted that both the state and the federal [alien] registration laws belong to that class of laws which concern the exterior relation of this whole nation with other nations and governments.” (internal quotations and citations omitted)). {p.37}

Such a “uniquely federal interest” in a national foreign policy is clearly not present in this case, and Defendants cannot create one merely by bootstrapping it — without any citations whatsoever — to cases such as Zschernig, Crosby, Pink, and Hines. ¶

Unlike the state conduct at issue in each of those four cases, holding the individual Defendants accountable under D.C. tort law for their ultra vires conduct in the foreign policy and national security arenas will neither create foreign policy (particularly insofar as the challenged conduct occurred over thirty years ago) nor have any effect whatsoever, much less a negative effect, on the nation’s ability to speak with “one voice” in its foreign policy, or on its relations with other countries. 21 

Further, even to the extent that the performance of foreign policy and national security functions does constitute a “uniquely federal interest” by virtue of the federal government’s exclusive power to conduct foreign relations, Defendants cannot (and apparently do not) seriously contend that, as required by Boyle, the operation of D.C. tort law to hold the individual Defendants liable for, inter alia, the kidnapping, torture, and death of General Schneider would significantly conflict with a federal policy or interest, as the conduct alleged in Plaintiffs’ Complaint is such that it can never fall within a federal officer’s official functions. ¶

Moreover, there can be no significant conflict between the operation of state law and a federal policy or interest insofar as both D.C. and federal laws applicable to this case provide similar causes of action — including for torture and summary execution — as remedies for the conduct alleged in Plaintiffs’ Complaint.

Finally, Plaintiffs urge the Court to reject the Defendants’ overbroad and apocalyptic claim that federal common law must displace D.C. tort law in this case because ¶

Memo. at 33. ¶

Putting to one side the degree to which Defendants’ claim raises issues not present in this case — Plaintiffs do not seek injunctive relief, and their Complaint contains concrete claims regarding the individual Defendants’ ultra vires conduct, rather than a mere “displeasure” with foreign policy — Plaintiffs note that the U.S. Supreme Court considered an analogous issue in Mitchell v. Forsyth, 472 U.S. 511, 524 (1985), in which it rejected the former Attorney General’s claims of absolute immunity for the performance of national security functions notwithstanding that Mitchell had been named as a defendant in numerous lawsuits relating to the conduct at issue in that case. ¶

The Court explained that the “spate of litigation does not ... seriously undermine our belief that the Attorney General’s national security duties will not tend to subject him to large numbers of frivolous lawsuits,” id. at 522, adding that it did ¶

Because, as outlined above, Plaintiffs’ Complaint implicates neither a “uniquely federal interest” nor a significant conflict between the operation of D.C. law and a federal policy or interest, this case does not present one of the “few and restricted instances” in which the displacement of state law by federal common law is warranted, and the individual Defendants do not enjoy absolute immunity from suit under D.C. law.

VI.
Sovereign Immunity
Should Not Shield United States
From Damages in this Case

As stated in the well-pleaded Complaint, the United States does not enjoy sovereign immunity from this suit because, among other reasons: {p.39}

Plaintiffs understand that this Court is bound by Princz v. United States, 26 F.3d 1166 (D.C. Cir. 1994), and in part present a good faith argument for a change in the law. ¶

In Princz, Judge Wald commented in her dissent, ¶

Id. at 1178 (Wald, J., dissenting). ¶

Similarly, the acts complained of herein violate jus cogens norms of the law of nations and by engaging in this conduct, the United States has implicitly waived its sovereign immunity.

Additionally, the United States, in helping establish the International Criminal Tribunals for Rwanda and the Former Yugoslavia, endorsed entities that soundly reject the idea that official responsibility is limited by immunity claims. ¶

Further, the legislative history of the TVPA, for example, demonstrates an intent to abolish notions of sovereign immunity for harms such as torture. See H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87 ¶

Finally, the United States’ response to the events of September 11th belies any claim that governments may not be held accountable for violations of jus cogens norms committed by {p.40} persons harbored and/or aided by the sovereign. ¶

It is doubtful that a World Trade Center decedents’ survivor would be barred from collecting damages from the Taliban related to the harms for which it was in part responsible. ¶

Comity demands, therefore, that the United States upholds this principle of just recompense for human rights violations wherever they may occur. ¶

Indeed, the continuing vitality of international coalitions and agreements depends on such principles of universal accountability.

Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss should be denied. Further, the Certification of Scope of Employment should be struck and leave should be granted to Plaintiffs to proceed with reasonable discovery. {p.41}

Dated: December 17, 2001
Dated: Washington, DC

Respectfully submitted,

 

{Signature}

Michael E. Tigar, Esq.
DC Bar No. 103762
1155 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
(202) 467-8583

{p.42}

 

 

Case No. 1:01CV01902 (HHK)

Appendix

Affidavit of Peter Kornbluh

I, Peter Kornbluh, do swear and affirm the following:

1.  That I am a specialist on the Cold War history of U.S. policy toward the country of Chile. ¶

I have spent many years obtaining and reviewing declassified U.S. government records pertaining to U.S. efforts in 1970 to block the election and ratification of Salvador Allende to the presidency of Chile. ¶

Over the past several years, for the writing of a book The Pinochet File: A Declassified Dossier on Atrocity and Accountability {LCCN: 2003050956}, I have diligently compared hundreds of recently declassified CIA and White House documents to the chapter contained in the Select Committee To Study Governmental Operations With Respect To Intelligence Activities, Alleged Assassination Plots Involving Foreign Leaders, “Assassination Planning and Plots: Schneider” {2456kb.pdf} (hereinafter Church Committee Report) {November 20 1975, SuDoc: 94-1:S.RP.465, Serial Set: 13098-8, CIS: 75 S963-1, LCCN: 75603538, DL, WorldCat}.

2.  While the Church Committee Report could be considered authoritative when it was written in 1975, in my opinion a review of the records and reports now available demonstrates that it is by no means the definitive account of events surrounding U.S. government operations to foment a military coup in Chile—intended to begin with the kidnapping of Chilean Commander-in-Chief of the Armed Forces, Gen. Rene Schneider in October 1970.

3.  The Church Committee did not claim to have before it all relevant Executive Branch documents. See Defendants Statement of the Case, p.3 (which claims otherwise). The Church Committee report states in footnote 2, page 2 {68 kb html/gif}, that ¶

The report does not state whether the Committee accepted those representations or not.

4.  The Church Committee’s experience in obtaining documents from the Executive Branch was known to be contentious and difficult. Loch Johnson, a former aide to Senator Frank Church, writes in his authoritative book, A Season of Inquiry: The Senate Intelligence Investigation (1985) {LCCN: 84022106}, that Senators and staff members were forced to make many calls to the White House to demand access to records the Committee had identified and requested. He describes White House officials as pleading patience and stating that they were understaffed. He quotes then CIA director William Colby as stating: ¶

Under public pressure, Johnson states, the Ford Administration became more cooperative but ¶

Season of Inquiry at 47-48.

5.  Records produced {June 30 1999, Oct. 8 1999, Nov. 13 2000} under the Clinton Administration’s Chile Declassification Project, and information produced by the CIA on Chile in the last two years, and the report itself indicate that some relevant documentation was not made available to the Committee. ¶

In at least one case, a Presidential memorandum of conversation relating in its entirety to undermining Allende’s presidency appears to have been withheld on grounds of non-relevance and executive privilege. ¶

The Committee did not have access to the daily calendars of President Nixon and his national security adviser, Henry Kissinger, which were relevant to meetings relating to covert operations in Chile. ¶

Key documents regarding CIA contacts with a group of coup plotters after Schneider was killed appear to have been withheld from the Committee. ¶

A Church Committee staff member who {p.3} participated in writing the chapter on General Schneider’s assassination believes that information contained in those documents, acknowledged by the CIA in September 2000, was not made available to the Committee.

6.  In addition to information the Church Committee may not have accessed, there are considerable amounts of detail and documentation it may have seen but did not include or highlight in the report. The Church Committee investigation into Alleged Assassination Plots was a massive research and writing project, undertaken and completed under tremendous time constraints in less than a year. Only two staffers were assigned the primarily {sic: primary} responsibility for the chapter on the assassination of General Schneider. Time pressures, a vast, if incomplete, quantity of information to process, drafting and editing considerations clearly played a role in the content and composition of the final report.

7.  Whether because of lack of access to records, lack of time to process documents in its possession, a failure to appreciate the importance of certain documents, or space and editing considerations, the Church Committee report omits or minimizes documents and information fundamental to the assertions made in the report—among them those cited by the Defendant’s Statement of the Case.

8.  The Statement of the Case quotes summary conclusions of the Church Committee Report as stating that ¶

Memo. p.4. ¶

It then cites an October 15th memorandum (164 kb html/jpg, 219kb.pdf) of conversation between Kissinger and a CIA official where a decision was made to {p.4} ¶

Id.

9.  The Church Committee Report left the erroneous impression that the Viaux group acted independently of a second group of coup plotters, led by Gen. Camilo Valenzuela who received weapons, money, and active encouragement from CIA and U.S. military officials up just hours before Gen. Schneider was shot. ¶

The drafters of the report relegated to one footnote (p.245 n.2) {73 kb html/gif} information derived from Chilean court records indicating that the two groups were co-conspirators, rather than unrelated independent entities. ¶

Those court records make it clear that representatives of both groups attended coup plotting meetings together, and arranged distinct, collaborative roles to be played in the plot to kidnap Schneider and use his removal as a catalyst to instigate a coup. ¶

Following the meeting with Kissinger on October 15th, CIA officials cabled {109 kb html/jpg, 138kb.pdf} the Station to instruct Viaux that they did not believe his coup plotting could succeed if he acted alone at this time, and directing him to ¶

That appears to be exactly what Viaux did.

10.  CIA documents, minimized in, or omitted from the Church Committee report, make it clear that U.S. agents were generally aware of this coup plotting collaboration. ¶

According to a declassified October 13 CIA cable {70kb.pdf}, Gen. Viaux told a CIA agent that his plan to kidnap Schneider was “part of coup that included Valenzuela.” ¶

On October 18th, a CIA official meeting with Viaux representatives was told {68kb.pdf} that Schneider would be kidnapped as the “first link” in a “chain of events.” ¶

In a footnote in the Church Committee report (p.244 n.2) {72 kb html/gif} the CIA agent who met with Viaux’s group stated he was told that the kidnapping “was going to be at some sort of banquet which the General {p.5} (Schneider) would be attending.” ¶

The same day, October 18th, the U.S. military attache, Col. Paul Wimert was told {289kb.pdf} separately by Gen. Valenzuela the details of the kidnapping plot, and the chain of events it would set off. ¶

Schneider would be kidnapped the following night as he left a military banquet being held for VIPs at an officers club. ¶

Valenzuela would be there to assure that security circumstances contributed to the ability of the kidnappers to intercept Schneider. ¶

A series of military moves would follow the kidnapping leading to removal of the elected Chilean president. ¶

Wimert was informed that Valenzuela was in communication with Viaux who was “knowledgeable of operation” on October 19. ¶

Valenzuela requested $50,000 to pay the team of abductors. ¶

Chilean trial transcripts make it clear that Viaux was responsible for organizing the abduction team. ¶

That abduction team attempted with Valenzuela’s direct help on October 19th to kidnap Gen. Schneider, but failed to intercept his car when he left the party. ¶

But the same team was responsible the follow-up attempt on October 22 during which Schneider was shot. ¶

The Church Committee acknowledges this fact in a footnote. (p.245. n.2) {73 kb html/gif} ¶

The kidnapping and shooting on October 22nd, both Chilean and CIA records demonstrate, were extensions of a kidnap/coup conspiracy that was initially intended to begin on October 19th. {Ditto: Jan. 12 1971 (255kb.pdf)}

11.  The Church Committee report does reference CIA documents demonstrating that at the time of the shooting, the CIA station chief clearly understood the attack involved both the active military officers in the Valenzuela group and non-active officers and civilians in the Viaux group. ¶

In a cable {117kb.pdf} to Headquarters sent shortly after the shooting on October 22, the Station chief wrote: ¶

According to Chilean court records, that is exactly what happened. ¶

The CIA did not assume the position that Viaux had acted independently and alone until substantially later, after press reports had linked U.S. covert operations to the assassination.

12.  The Church Committee Report erroneously left the impression that the CIA had no further contact with the Viaux group after attempting to “defuse” his coup plotting on October 18th, and therefore bore no responsibility for his actions that led to the assassination of General Schneider. ¶

But the Committee appears not have known of the existence of key CIA records, now declassified, that show multiple contacts after the shooting, and a payment of money to assure silence about the CIA’s relationship to Viaux. ¶

On October 24, the CIA was contacted by a representative of Viaux’s group. According to a cable {157kb.pdf} to headquarters on that day, the representative presented requests “that the group wants to see fulfilled ‘based on your promises’.” Among them: ¶

In early November, according to a declassified November 9th cable {130kb.pdf} from the Station, the CIA received intelligence that Viaux had ¶

A decision was made to pay Viaux’s people thousands of dollars in order to assure their silence about contacts with the CIA prior to the murder and to aid their flight. {p.7}

In a September, 2000 report to Congress on CIA Activities in Chile (“Hinchey Report”), the CIA conceded for the first time that it paid money to Viaux’s group after Schneider was killed. According to the report:

None of the documentation regarding these payments was apparently made available to the Church Committee.

13.  The Statement of the Case quotes the Church Committee’s conclusion that ¶

But the Church Committee report did not incorporate two CIA cables that show that violence and even death was anticipated as a possibility in the Schneider kidnapping. ¶

The first, a cable {374kb.pdf} from the CIA station chief dated October 8 {sic: 9}, reported on a conversation with a high-ranking Chilean Carabinero official, who suggested that

(The Committee Report obliquely refers to this cable in another context. p.246 {64 kb html/gif}). This information was disseminated to CIA headquarters. ¶

In a second meeting on October 16th where violence was anticipated and discussed a representative of Viaux’s group asked a CIA official for ¶

A CIA cable {155kb.pdf} reporting on this meeting was disseminated at CIA headquarters. {p.8}

14. Finally, the Statement of the Case quotes the Church Committee’s conclusion that ¶

Numerous CIA memcons and cables record meetings where Schneider’s abduction was discussed; none appear to contain any cautionary warning from a U.S. official that he should not be harmed. ¶

The Committee Report itself contains evidence that CIA officials did not voice any concern or displeasure on the fate of General Schneider after he was shot and instead commended the CIA station for work leading up to the shooting. ¶

On page 246 {64 kb html/gif}, the Committee Report cites language from the CIA Task Force logs on an October 23rd briefing {55kb.pdf} with CIA director Richard Helms on the shooting. ¶

The Church Committee report, however, omits reference to the cable {64kb.pdf} sent from CIA headquarters to the Santiago station following the Helms briefing which read:

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on: _______

 

Washington District of Columbia Subscribed and sworn to before me, in my presence, this 17th day of December 2001 by Peter Kornbluh.

{Signature}  Notary Public

Darla R. Wiest-Cooper
My commission expires November 30, 2005

{p.50}

______________________

Certificate of Service

I hereby certify that on December 17, 2001, I served a true copy of the foregoing Consolidated Opposition to Defendants’ Motion to Dismiss and Cross-Motion to Strike Certificate of Scope of Employment by first class mail, postage pre-paid, addressed to the defendants’ counsel as follows:

Richard Montague
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington D.C. 20044-7146

 

{Signature}

Steven P. Ragland

Footnotes

 1  Defendants ask this Court to ignore fundamental rules of civil procedure and reach the factual merits of the instant action in a preliminary motion. See Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1292 (9th Cir. 1997), rev’d on other grounds, 525 U.S. 432 (1999) (affirming maxim that the court cannot judge a claim on the facts at the 12(b)(6) stage). A Rule 12(b)(6) Motion must, of course, accept the facts presented in the well-pleaded Complaint. Albright v. Oliver, 510 U.S. 266, 268 (1994) (stating the court must “accept the well-pleaded allegations of the complaint as true.”); Fed. R. Civ. P. 12(b)(6). Defendants have refused to follow this fundamental maxim. See Memo. Part B., “The Facts of the Case”, pp.1-5.

 2  Defendants seek not only to lead this Court astray from the facts of the well-pleaded Complaint, but also to introduce documents into evidence that have not been produced to the Plaintiffs or, presumably, to the Court. See Memo. at 3-5 (referring to the “Church Committee Report”). This improper attempt to introduce factual evidence comes well before any formal or informal discovery has ensued.

 3  Plaintiffs do not accept the Church Committee findings as a whole. Among other reasons for this view, Defendant Kissinger caused the withholding of material evidence from the Committee. See Affidavit of Peter Kornbluh, attached as Appendix (hereinafter “Appendix”). Plaintiffs’ {p.3} evidence, as pleaded in the Complaint, is largely based on factual materials uncovered since the Committee’s hearings and report.

 4  While Plaintiffs maintain that no burden exists to engage in a factual debate at this preliminary stage, we will respond to Defendants’ inopportune assertions while not conceding that they are proper for the Court to consider at this time. We maintain that all factual issues are properly left for subsequent proceedings.

 5  See, e.g., Letelier, 488 F.Supp. at 674; Hilao v. Estate of Marcos {78kb.html}, 25 F.3d 1467, 1472 (9th Cir. 1994) (holding former President of the Philippines Ferdinand Marcos liable for acts of torture and execution because his acts were “clearly outside the scope of his authority as President”); Calley v. Callaway, 519 F.2d 184, 193-94 (5th Cir. 1975) (affirming judgment that officer in Vietnam war should have known that orders to kill civilians during wartime were illegal).

 6  {p.5} See, e.g., Virginia Morris & Michael P. Scharf, The International Criminal Tribunal for Rwanda, Vol. 1. 64-5 (1998) (stating the U.S. was the first country to officially support the ICTR); Secretary Madeleine Albright, U.S. Dept. of State Dispatch, June, 1999 {copy}, Statement Before the Senate Appropriations Committee on Foreign Operations {copy}, Washington, D.C., May 20, 1999 (“We are continuing to work, through military and diplomatic means ... to support the International Criminal Tribunal for the former Yugoslavia”); Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) {House of Lords, BAILII}, (1999) 2 W.L.R. 827, reprinted in 38 I.L.M. 581 (1999) (holding former General Pinochet did not enjoy immunity for torture allegations in Chile).

 7  Plaintiffs note additionally that the underlying documents upon which the Hinchey Report is based should be provided by the Government at the earliest stage of discovery.

 8  See 50 U.S.C. § 402 (1994) (designating the Assistant to the President for National Security Affairs as chairperson of both the Committee on Foreign Intelligence and the Committee on Transnational Threats, charged with the task of conducting annual reviews of national security interests, identifying the intelligence required to meet such interests, and conducting an annual review of the elements of the intelligence community).

 9  See 50 U.S.C. § 401 (1994) (charging the Director of Central Intelligence with coordinating the nation’s intelligence activities and correlating, evaluating and disseminating intelligence which affects national security).

 10  See Central Intelligence Agency, Frequently Asked Questions, at http://www.cia.gov/cia/public_affairs/faq.html#7 (noting that once the agency is tasked to conduct a covert operation, “the Director of Central Intelligence must notify the intelligence oversight committees of the Congress”).

 11  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85; 23 I.L.M. 1027 (ratified by the Senate in 1990) {cited above}; ¶

 12  Id.

 13  Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) {28 U.S.C. § 1350, note}; 28 U.S.C. § 1350; 28 U.S.C. § 1331.

 14  See, e.g., Doe v. Islamic Salvation Front (FIS), 993 F.Supp. 3, 8 (D.D.C. 1998) {178kb.pdf} {dismissed March 31 2003: 32kb.pdf}; Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) {15 kb txt, 21kb.pdf}; Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995) {72kb.html, 100 kb rtf}; Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Xuncax v. Gramajo, 886 F.Supp. 162, 177 (D. Mass. 1995); Estate of Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1362 (S.D. Fla. 2001) {109kb.html, menu}.

 15  Defendants concede that Filartiga and Judge Edwards’ concurring opinion in Tel-Oren stand for the proposition that the ATCA “authorize[s] a cause of action for aliens seeking redress for violations of international law.” Memo. p.25 n.7.

 16  At the same time, Defendants apparently recognize that Plaintiffs’ claims under the TVPA provide a statutory basis that cuts against immunity claims as to Defendants Kissinger and Helms. See Memo. p.24 (stating that “Congress preserved personal liability for certain federal statutory claims” and admitting that the TVPA is one such claim).

 17  Defendants rely on the first President Bush’s statement that he believes the TVPA should not apply to U.S. Armed Forces or law enforcement operations (note on p.35). However, Defendants Kissinger and Helms are not “US Armed Forces or law enforcement operations” and no such entities are involved in this action.

 18  See, e.g., Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir. 2000) (intentional infliction of emotional distress); Jenco v. Islamic Republic of Iran {51kb.pdf}, 154 F.Supp.2d 27 (D.D.C. 2001) (same); Anderson v. Prease, 445 A.2d 612, 613 (D.C. 1982) (same); Long v. District of Columbia, 820 F.2d 409 (D.C. Cir. 1987) (wrongful death); Wagner v. Islamic Republic of Iran, No. Civ. A. 00-1799, 2001 WL 1424312 (D.D.C. Nov. 6, 2001) (same); District of Columbia v. Hawkins, 782 A.2d 293 (D.C. 2001) (same).

 19  Although even Boyle itself explicitly describes only “the civil liability of federal officials for actions taken in the course of their duty” 487 U.S. at 505 (emphasis added), as a “uniquely federal interest,” other courts have indicated even more clearly that this “uniquely federal interest” does not extend to the issue of civil liability for federal officials acting outside the scope of their employment. See, e.g., Woodward Governor Co. v. Curtiss-Wright Flight Sys., Inc. {27kb.html}, 164 F.3d 123, 127 (2d Cir. 1999) (“uniquely federal interests ... arise only in a few areas, such as ... the liability of federal officers for official acts” (emphasis added)); cf. Brown v. Nationsbank {p.35} Corp. {41kb.html}, 188 F.3d 579, 589 (5th Cir. 1999), cert. denied 530 U.S. 1274 (2000) (“The liability of private defendants for actions taken at the direction of agents acting within their authority is a unique federal interest.” (emphasis added)).

 20  As the First Circuit noted in National Foreign Trade Council v. Natsios {122kb.html}, 181 F.3d 38, 50 (1999), aff’d sub nom. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), “some degree of state involvement in foreign affairs is inevitable: ‘in the governance of their affairs, states have variously and inevitably impinged on U.S. foreign relations.’ L. Henkin, Foreign Affairs and the United States Constitution 162 (2d ed. 1996).”

 21  To the contrary, ensuring that U.S. officials are accountable for ultra vires actions, such as those of Messrs. Kissinger and Helms, that affect the internal politics of other nations may in fact improve U.S. relations with those nations.

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted May 14 2003. Updated April 20 2008.

http://homepage.ntlworld.com/jksonc/docs/schneider-d10.html