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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).

United States District Court for the District of Columbia

	)
Rene Schneider, et al.,	)
Plaintiffs,	)
)
v.	)
)
Henry A. Kissinger, et al.,	)
Defendants.	)
	)

Plaintiffs file this consolidated reply and cross motion in response to Defendants’ Motion to Dismiss and accompanying Memorandum of Points and Authorities (collectively “Motion”). Plaintiffs seek an order:

Introduction

The United States’ Motion, in which the U.S. seeks to substitute itself for the individual defendants and to shield their actions from liability, contradicts rules of civil procedure, 1  principles of sovereign responsibility, and constitutional norms. ¶

In doing so, it seeks to inject alleged factual materials into the controversy at an inappropriate procedural hour. 2 

More fundamentally, the tenor of Defendants’ Motion contradicts the entire history of judicial review in American law. ¶

Chief Justice Marshall said that denial of a judicial remedy for a wrong is such an “obloquy” on American justice that it should not be tolerated save under the most limited conditions. Marbury v. Madison, 5 U.S. 137, 163 (1803).

The allegations in the well-pleaded Complaint must be taken as true for the purposes of the pending motions. Albright v. Oliver, 510 U.S. 266, 268 (1994). ¶

We emphasize: (a) the quoted material in the Complaint comes from United States Government documents, most of which were recently declassified; and (b) the Government’s Motion concedes, in footnote 3, that the Church Committee 3  found that these defendants intended to kidnap General Schneider, the {p.3} plaintiffs’ decedent. See Memorandum of Points and Authorities in Support of the Defendants’ Motion to Dismiss (“Memo.”) at p.5 n.3. ¶

Armed men were sent to kidnap a senior military officer. ¶

Inevitably, this conduct — which was ordered and paid for by these defendants — created a high risk of death to General Schneider and others. ¶

At common law, by statute, in almost every civilized country, and under the Model Penal Code this constitutes “depraved heart murder.” See, e.g., Model Penal Code § 210.2(1)(b) (“under circumstances manifesting extreme indifference to the value of human life”); Wayne LaFave & Austin Scott, Criminal Law § 7.4 (3d ed.).

Defendants’ Memorandum, therefore, seeks to have it both ways. While refusing to accept the truth of the allegations in the well-pleaded Complaint, it seeks to dismiss this action based on the Complaint itself. In so doing, Defendants’ Memorandum actually concedes the main points at issue. 4 

So, the issue is framed. ¶

Do these Defendants have impunity from their participation in this killing, assuming (as we confidently expect) that Plaintiffs can prove their allegations to a jury? ¶

In Letelier v. Republic of Chile, 488 F.Supp. 665, 673-74 (D.D.C. 1980), Judge Joyce Hens Green rejected Chile’s immunity arguments and held the Pinochet junta liable for murdering Orlando Letelier and Ronni Moffitt in Washington, D.C. ¶

That situation is now turned around, and domestic defendants are sued for planning and ordering a killing in Chile. ¶

Further, Defendants in the instant action ordered and paid for the kidnapping and subsequent killing of an official in the highest ranks of the Chilean government. An even more apt analogy would be {p.4} foreign nationals financing the kidnapping and killing of General Richard B. Myers, Chairman of the Joint Chiefs of Staff. ¶

Such conduct can never stand as non-justiciable and the perpetrators can never be shielded by immunity.

Nearly sixty years ago, the United States took the lead in drafting the London Agreement, which recognized responsibility for acts in violation of international law. ¶

See Charter of the International Military Tribunal (IMT) in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 277 {1 I.M.T. 8, 10-18} {16.5mb.pdf, source}; see also Bradley F. Smith, The Road to Nuremberg 10 (1981) {LCCN: 80068174} (“The central fact is that the Nuremberg Trial System was created almost exclusively in Washington by a group of American government officials.”); Panel Session: Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law, 80 Am. Soc’y Int’l L. Proc. 56 (1986) (discussing the impact and precedent of the Nuremberg trials). ¶

The London Agreement made clear that an individual’s official capacity does not confer immunity. London Agreement, Art. 1. ¶

The Agreement also made clear that lower-level officials cannot escape liability by saying they were “just following orders.” See Constitution of the International Military Tribunal, Arts. 7, 8 {1 I.M.T. 12; 82 U.N.T.S. 288}. ¶

The United States joined with all members of the infant United Nations in approving the judgment of the Nuremberg tribunals. See Telford Taylor, The Anatomy of the Nuremberg Trials 66 (1992) {LCCN: 91042605, 93024511}. ¶

These historic precedents have led in later decades to judicial decisions in this country 5  and abroad 6  that reject every one of the Defendants’ sweeping assertions. {p.5}

Ultimately, this is a case about kidnapping resulting in death. It is the case of General Schneider’s two sons bringing suit for the wrongful death of their father as a result of the actions of Defendants. ¶

This certainly is not a challenge to the entire United States foreign policy during the Cold War.

Additionally, because Defendants’ conduct constitutes a clear violation of peremptory norms of international law, such that can never be within the scope of employment, the certification by Defendant United States is improper. ¶

The instant action is justiciable, Defendants Kissinger and Helms are not shielded by immunity, and the Complaint states cognizable claims. ¶

Plaintiffs maintain that the United States Government should not enjoy sovereign immunity. ¶

Plaintiffs therefore respectfully request that the Court deny Defendants’ Motion to Dismiss and strike the Certification.

Statement of the Case

When an extrajudicial assassination has taken place, all who carried it out, planned it, and/or aided and abetted it are responsible. See LaFave & Scott, Criminal Law § 6.4 (3d. ed. 2000). ¶

No principle is more basic than this. ¶

Indeed, in the criminal prosecution of Zacarias Moussaoui {docket sheet, 500kb.html}, filed last week in Alexandria, Virginia, the United States embraced this principle.

Notwithstanding this basic principle, Defendants allege the instant suit against Defendants Kissinger and Helms regards “actions taken in their former official capacities.” {p.6} Memo. p.l. ¶

Plaintiffs’ Complaint, however, clearly states that the actions complained of were not and can never be within the scope of lawful employment. See Compl. ¶ 3. ¶

While the United States seeks to certify Defendants Kissinger and Helms as acting within the scope of employment, such certification is entitled to judicial review and involves questions of fact that cannot be determined without discovery and an evidentiary hearing.

While factual findings are improper at this preliminary stage, Defendants nonetheless sought to enter new factual evidence into the record through their Memorandum. ¶

Accordingly, Plaintiffs now ask this Court to take judicial notice of the entire Church Committee Report, cited in Memo. p.3. ¶

As the Church Committee Report presents an incomplete record of the events surrounding General Schneider’s death, see Appendix (affidavit detailing deficiencies of the Church Committee Report), Plaintiffs further ask this Court to take judicial notice of the Report on CIA Activities in Chile (“Hinchey Report”), September 18, 2001, available at http://www. foia.state.gov/Reports/HincheyReport.htm (77kb.html), which provides a more complete record regarding the events at issue in this litigation. 7  {Also via the CIA (58kb.html) and National Security Archive (157 kb html/gif) (typewritten version)}.

As it improperly seeks a judicial determination of factual issues not yet presented, Plaintiffs ask this Court to strike or exclude Part B, “Statement of the Case,” of Defendants’ Memorandum pursuant to Fed. R. Civ. P. 12(b), except to the extent that the Statement contains admissions of liability and therefore is admissible pursuant to Fed. R. Evidence 801(d)(2); United States v. GAF, 928 F.2d 1253 (2d Cir. 1991). ¶

Specifically, Plaintiffs ask the Court to take judicial notice that Defendants admit that the United States provided weapons to Chilean dissidents plotting to kidnap General Schneider and that “United States officials,” including these defendants, had the “intention” to “abduct General Schneider.” See Memo. p.5, n.3. ¶

Under {p.7} American law, a homicide in the course of an armed kidnapping is foreseeable. See Tison v. Arizona, 481 U.S. 137, 150-51 (1987); Erskines v. United States, 696 A.2d 1077, 1081 (D.C. Ct. App. 1997); McLucas v. Palmer, 309 F.Supp. 1353 (D. Conn. 1970). ¶

To plan and carry out such a kidnapping, with a military officer as victim, amounts to knowing behavior, under circumstances evidencing depraved indifference to the value of human life. ¶

This is murder. See Criminal Law §§ 7.1, 7.4.

Argument

While it is true that this case arises “[t]hirty years removed from the events at issue,” Memo. p.6, this delay is occasioned by Defendants’ actions to conceal, cover-up, and present a false account of their acts and omissions that were the proximate cause of General Schneider’s death. See Appendix.

Further, not until the release last year of the Hinchey Report was a more complete story of events available to either the public or the Legislature. See Appendix. ¶

While Plaintiffs do not wish to plead their case in pre-trial motions, we are compelled to respond to the mistaken impressions created by Defendants’ attempt to re-characterize the facts at issue. ¶

As clearly stated in the Complaint, Defendants’ effort to kidnap General Schneider “was organized, coordinated and operated by Defendants outside the normal channels for covert operations.” See Compl. ¶ 20. ¶

It was cloaked in secrecy. See id. ¶ 33. ¶

Evidence of the crime was disposed of in an attempt to hide the truth. See id. ¶ 45. ¶

That the Defendants hid their acts not just from the United States people, but from the normal channels of covert operations and government oversight belies the claim that Defendants Kissinger and Helms were acting within the scope of lawful employment. ¶

No civilized country can tolerate permitting high officials to kidnap and kill at will. {p.8}

Under fundamental norms of international law, at least since the London Agreement, no official has immunity for violations of internationally recognized human rights. ¶

One major aspect of this theory is the ultra vires doctrine, represented by Jimenez v. Aristeguieta, 311 F.2d 547, 557-58 (5th Cir. 1962). ¶

This contradicts the government’s assertion that Defendants Kissinger and Helms were acting within the scope of employment.

I.
Certification of Scope of Employment
Improper

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) (“Westfall Act”) provides immunity to a federal officer “acting within the scope of his office or employment.” See id. § 2671. ¶

As discussed herein, and pleaded in the Complaint, the acts complained of were not, and cannot be, within the scope of lawful employment. ¶

The Attorney General’s Certification is not determinative of the question and is subject to review by this Court. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (holding Certification subject to judicial review and commenting that Certification “does not conclusively establish as correct the substitution of the United States as defendant in place of the employee”); Kimbro v. Velten, 30 F.3d 1501 (1995) (finding Certification only prima facie evidence that employee was acting within the scope of employment and holding Certification order reviewable by the court after reasonable discovery allows plaintiff opportunity to meet burden of challenge to Certification). ¶

It must be noted that the United States Government, through a brief of amicus curiae, supported reviewability of the Certification in Gutierrez de Martinez.

Additionally, certification that an employee was acting within the scope of employment involves settling issues of fact that require an evidentiary hearing and reasonable discovery, such as depositions, document production, and interrogatories. {p.9}

Were the Government’s Certification of Scope of Employment (“Certification”) taken at face value, the scope of employment for high-ranking governmental officials includes carte blanche power to conspire to cause the abduction and eventual murder of foreign military leaders, without the knowledge, much less approval, of key members of the Executive branch and/or members of the Legislative branch. ¶

This simply cannot be the case. ¶

Additionally, the United States Government clearly would not — and should not — tolerate an analogous assertion by a foreign government whose officials had been charged with conspiring to cause the abduction and murder of a U.S. military leader. ¶

Accordingly, the Certification should be judged improper and stricken.

An act is within the scope of employment only if: (1) it is the kind of act the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the master; and (4) if force is intentionally used by the servant against another, the use of force is not unexpected by the master. Haddon v. United States {63kb.html}, 68 F.3d 1420, 1423-24 (D.C. Cir. 1995) (citing Restatement (Second) of Agency § 229 (1957) {OCLC: 507609, LCCN: 58004270, WorldCat} and adopting it in this District).

In the instant case, Defendants fail to meet the Haddon threshold for acting within the scope of employment. Specifically, kidnapping and extrajudicial killing cannot be the kind of act duly employed officials within the Executive branch are employed to perform. ¶

It is simply inconceivable that former National Security Adviser Kissinger was hired in part to kidnap and kill foreign military officials. 8  ¶

Similarly, the Director of the Central Intelligence Agency’s job {p.10} description cannot include unfettered ability to order kidnappings and killings without knowledge or consent of key governmental officials and outside the normal checks and balances that oversee covert operations. 9  ¶

The Agency itself disavows such an approach. 10  ¶

Further, as stated in the well-pleaded Complaint, Defendants told the Chilean coup plotters ¶

Compl. ¶ 33. ¶

Again, it is inconceivable that it is within the scope of employment for an Executive department employee to instruct others to disregard guidance by others within the United States government, particularly when those others include personnel with oversight duties.

The Certification is subject to de novo review by this Court and Plaintiffs are entitled to and respectfully request such review. See Kimbro, 30 F.3d at 1509 (treating the Certification as not “having any particular evidentiary weight” and holding that “following reasonable discovery” when “there is a material dispute as to the scope issue the district court must resolve it at an evidentiary hearing”); Gutierrez de Martinez, 515 U.S. at 434 (holding Certification subject to judicial review).

For the foregoing reasons, Plaintiffs respectfully request that this Court strike the Certification of Scope of Employment. ¶

In the alternative, we respectfully request leave to take discovery and ask that an evidentiary hearing be set on this matter. {p.11}

II.
Political Question Doctrine
Not Applicable to this Case

A.
Background

As Professor Wright remarks in his Law of Federal Courts hornbook:

Charles Alan Wright, Law of Federal Courts 83 § 14 (5th ed. 1994) (internal citations omitted).

Professor Wright further observes that the Supreme Court ¶

Federal Courts, at 83, 91 § 14; see also Michael Tigar, Judicial Power, The ‘Political Question Doctrine,’ and Foreign Relations, 17 U.C.L.A. L. Rev. 1135 (1970) (cited with approval by id. at 83, § 14 n.1).

Additionally, the United States Government itself has taken the position that:

Brief of Amicus Curiae {at pages 22-23}, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (reprinted in 12 Hastings Int’l & Comp. L. Rev. 34 (1988) and 19 I.L.M. 585). ¶

It is clear, therefore, that the political question doctrine is very narrow and applied by the courts only in very limited circumstances.

B.
Mere Torts Not Political Questions

The events at issue relate to an extrajudicial kidnapping that resulted in death. General Schneider’s kidnapping was planned without Legislative oversight and executed outside the normal channels, even for covert actions. See Compl. ¶ 20. ¶

Defendants withheld details about their acts and omissions from other members of the Executive branch and withheld information from the United States Senate. See Appendix. ¶

The political question doctrine cannot act as an immunity shield for individual governmental employees who happen to be employed by the Executive.

As stated in Powell v. McCormack, 395 U.S. 486, 518 (1969), ¶

Resolving the claims presented here does not imply separation of powers concerns and political question doctrine simply does not apply. As the court in Klinghoffer v. S.N.C. Achille Lauro stated in rejecting the claim that the political question doctrine barred relief:

739 F.Supp 854, 860 (S.D.N.Y. 1990). {p.13}

On appeal, the Second Circuit affirmed the District Court’s holding with regard to political question and justiciability. Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 {copy, justia, altlaw} (2d Cir. 1991) (vacating and remanding on other grounds). The Court of Appeals explained, ¶

Id. at 49. ¶

After outlining the Baker factors, the court continued:

Id.

C.
Foreign Policy of the United States Not at Issue

The events complained of do not relate to a decision regarding the “recognition of foreign governments,” See Memo. p.12, or a “President’s decision to deploy military force against a foreign government,” See Memo. p.13. Plaintiffs do not ask this Court to “decide that an Allende government would have been better or worse for the United States’ interests.” Memo. p.12. Plaintiffs likewise do not challenge that “the ‘nuances’ of ‘the foreign policy of the United States ... are much more the province of the Executive Branch and Congress than of this Court.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 386 (2000) (cited in Memo. p.12). ¶

Rather, Plaintiffs seek only a vindication of personal rights. Such vindication is not barred by the political-question doctrine. Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988); Kadic v. Karadzic {72kb.html, 100 kb rtf}, 70 F.3d 232, 249 (2d Cir. 1995) (“Although these {p.14} cases present issues that arise in a politically charged context, that does not transform them into cases involving nonjusticiable political questions. ‘The doctrine “is one of ‘political questions’, not one of ‘political cases’.’”) (citing Klinghoffer, 739 F.Supp at 860.

Defendants willfully and wrongly excluded the Legislative branch from the process and therefore removed such action from the proper scope of their authority. Indeed, it took Legislative action, in the form of the Hinchey Report, to reveal the secret scheming of Defendants three decades after the fact. ¶

It is entirely within the realm of judicial authority to remedy usurpations of power by one branch of our government over another and to remedy inter-branch disputes. The Paquete Habana, 175 U.S. 677 (1900); Cherokee Nation v. Georgia, 30 U.S. 1 (1831). ¶

Indeed, it is even the province of Article III Courts to decide inter-branch disputes. See, e.g., Powell, 395 U.S. 486; United States v. Nixon, 506 U.S. 224 (1993).

As stated in Powell, 395 U.S. at 518, ¶

The instant case presents no issues regarding the separation of powers within the Federal Government. It merely regards the vindication of personal rights violated by Defendants acting ultra vires. ¶

That Defendants Kissinger and Helms were Executive Branch employees and that their acts touched upon foreign relations does not make this case nonjusticiable.

As explained in Baker v. Carr, 369 U.S. 186, 211 (1962), ¶

See also Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 229-30 (1986) (citing Baker). ¶

It is simply not the case that employees of the Executive branch may act in whatever manner they choose “in response to a perceived national security threat posed by events occurring in a foreign nation.” See Memo. p.9-10. ¶

Indeed, the United States Supreme Court has {p.15} found justiciable matters involving executive action even during wartime. Korematsu v. United States, 323 U.S. 214 (1994); Hirabayashi v. United States, 320 U.S. 81 (1943); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975). ¶

Courts have consistently held that when Executive officers step beyond bounds and individual life or liberty is at stake, the Article III Courts are the proper forum to remedy the harms. Ex parte Bollman, 8 U.S. 75 (1807); Ex parte Milligan, 71 U.S. 2 (1866); Duncan v. Kahanamoku, 327 U.S. 304 (1946).

D.
Baker v. Carr Factors
Weigh Against Political Question
in Instant Action

Evaluating the Baker v. Carr factors is illustrative: [1] while conduct of foreign affairs is textually committed to the Executive and Legislative branches, this case does not involve questions of the propriety of United States policy in general towards Chile, it merely regards ultra vires acts taken by employees of the Executive. Additionally, in the instant case, the Legislative branch was misled and denied its proper role of involvement and oversight; [2] the standards for evaluating wrongful death are well-established. D.C. Code § 16-2701. The Court need not depart from these in managing the instant action; [3] the Court is not here asked to pass judgment on any perceived value or danger of the Allende government to United States interests and need not make any policy determination, nor is the Court asked to rely upon classified documents to make a judgment; [4] providing an opportunity to redress ultra vires acts taken by Executive employees respects the authority and legitimacy of the Executive Branch itself. Further, especially given the three decades of Legislative Branch efforts resulting in the ultimate disclosure of the events at issue, disallowing this action to move forward disrespects the Legislature; [5] there exists no unusual need for the unquestioning adherence to a political decision already made. The decision to kidnap General Schneider was made outside the normal channels of political decision-making over thirty years ago, and the impropriety of that act has {p.16} been admitted by the United States itself. See Hinchey Report; and [6] Right to judicial redress for personal injuries complained of herein requires no pronouncement from the Judicial department that could cause embarrassment to any other department. The impropriety of the acts complained of herein has already been admitted by the Executive Branch and it was the Legislative Branch initiative of Senator Hinchey that brought many of the facts of the instant case to light. The Hinchey Report admits:

Id. { at p.11 DoS copy (77kb.html), CIA copy (58kb.html), NSA copy (78 kb html/gif, typewritten version)}.

E.
Use of United States Military Forces
Not Implicated in Instant Action
and Plaintiffs Do Not Seek
to Impose upon Armed Forces
any Duty of Care

Industria Panificadora, SA v. United States, 763 F.Supp. 1154 (D.D.C. 1991) (cited in Memo. p.13), involved sending U.S. troops to Panama. The case involved the actual use of U.S. military forces, an issue clearly “entrusted to the political branches.” Id. at 1159-60. The instant action does not involve any use of U.S. military forces. Further, the plaintiffs in Industria sought to impose upon the U.S. Armed Forces an affirmative duty to maintain public order in Panama. Resolving the issue, therefore, would have required the Judiciary to determine the appropriate duty of care and impose upon the U.S. military a judicially-determined standard of conduct. See id. at 1160-61. The instant case, however, makes no such demands and therefore is not controlled by Industria. {p.17}

In Chaser Shipping Corp. v. United States, 649 F.Supp. 736 (S.D.N.Y. 1986) (cited in Memo. p.13), plaintiff corporations sought to recover alleged damages resulting from a broad policy by the Executive branch to mine the Nicaraguan harbor of Corinto. Plaintiffs claimed that the “injuries could have been avoided if the CIA and/or the President had conducted the mining operations with due care,” id. at 738, and sought to impose upon covert military operatives a duty of care subject to judicial review. Id. at 738-39. Commenting that such determinations would require a court to evaluate classified intelligence documents, and citing “the potentiality of embarrassment from multifarious pronouncements by various departments on one question,” id. at 740, the court found the suit barred by the political question doctrine. ¶

In the instant action, this Court is not asked to impose upon the Executive any duty of care regime. ¶

Plaintiffs simply seek redress for personal injuries caused by Defendants acting ultra vires. ¶

The Court need not evaluate classified documents, as the documents that form the basis of this action have been declassified and are part of the public record. ¶

Further, as discussed above, there is no danger that this case will lead to “multifarious pronouncements.”

Hwang v. Japan {142kb.pdf}, No. Civ.A. 00-02233 (HHK), slip op. (D.D.C. Oct. 4, 2001) (2001 U.S. Dist. Lexis 15970) (cited by Defendants as Joo v. Japan at Memo. p.15), similarly involved issues intertwined with direct United States troop involvement in foreign nations, on a far greater scale even than that of Panama. Further, Hwang asked this Court to judge the propriety of various war claims settlements implicating the 1951 Treaty of Peace with Japan. ¶

Such questions clearly go far beyond the scope of the issues presented in the instant action.

Although Defendants cite the case below it for apparent support, Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) (cited in Memo. p.13), actually demonstrates the reluctance of the courts to invoke the political question doctrine. The Court in Sanchez-Espinoza {p.18} chose not to “expand our jurisdiction by resolving the assertedly political question on its merits” and affirmed the District Court dismissal on other grounds. Id. at 206. Further, Sanchez-Espinoza involved a broad Executive policy of support for a foreign fighting force in Nicaragua, which implicated the risk of “multifarious pronouncements” given the ongoing nature of the Executive action and the fact that twelve members of the United States House of Representatives were among the plaintiffs. ¶

In the instant action, there is no continuing policy, nor was there ever any actual policy, to kidnap foreign military leaders in Chile.

For the foregoing reasons, therefore, Plaintiffs respectfully request this Court reject Defendants’ Motion to Dismiss on political question grounds. ¶

Alternatively, Plaintiffs ask that this Court stay determination of this ground and provide for reasonable discovery and an evidentiary hearing necessary to properly rule on the political question issue. ¶

Leave to take the depositions of Defendant Kissinger and former Ambassador to Chile Edward Korry, for example, would help provide a more complete record required with which to evaluate the nature of the acts at issue in this litigation.

III.
Defendants Kissinger and Helms
Are Not Immune from Suit

Even sitting Presidents do not enjoy absolute immunity from suit for common law torts and violations of statutes. See Clinton v. Jones, 520 U.S. 681, 707 (1997). ¶

Further, courts have never held that a subordinate federal officer has absolute immunity from intentional torts. Indeed, Mitchell v. Forsyth, 472 U.S. 511, 520 (1985), directly holds to the contrary. The Court in Mitchell held that the United States Attorney General does not enjoy absolute immunity for acts performed in the exercise of his national security functions. Id. As the Court commented, “performance of national security functions does not subject an official to the same obvious risks {p.19} of entanglement in vexatious litigation as does the carrying out of the judicial or ‘quasi-judicial’ tasks that have been the primary wellsprings of absolute immunities.” Id. at 521.

Indeed, the fact that Defendants Kissinger and Helms colluded to withhold from the Legislative branch and the public the full picture of the events surrounding the death of General Schneider cuts strongly against any claim of immunity on their behalf. As the Mitchell Court stated:

Id. at 522-23 (internal citations omitted).

Moreover, even by the most forgiving analysis, none of the Defendants’ actions in any way involved “carrying out ... judicial or ‘quasi-judicial’ tasks” upon which the absolute immunity doctrine is prefaced. ¶

Additionally, neither Defendant was a member of the Cabinet at the time of the acts at issue in the instant action. Any immunity shield claimed in the instant case, therefore, is necessarily less applicable than that claimed by the Attorney General in Mitchell.

While Defendants claim absolute immunity for their role in General Schneider’s kidnapping and murder, it is well established that “qualified immunity represents the norm” for “executive officials in general.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). ¶

Further, as the {p.20} Harlow Court held, “government officials performing discretionary functions” enjoy qualified immunity only “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818.

Applying this standard demonstrates:

By the actions complained of in this case, then, Defendants Kissinger and Helms stripped themselves of the any {sic} qualified immunity to which they may otherwise have been entitled.

Plaintiffs reserve the right to fully brief the issue of whether immunity attaches under the Westfall Act in the event that, after reasonable discovery and an evidentiary hearing on the matter, the Court upholds the Certification of Scope of Employment. ¶

Plaintiffs do, however, state for the record that both the Torture Victim Protection Act {28 U.S.C. § 1350, note} and the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), provide causes of action against Defendants Kissinger and Helms. ¶

As to the ATCA, we emphasize that Defendants concede that the ATCA “authorize[s] a cause of action for aliens seeking redress for violations of international law,” Memo. p.25 n.7, and that no majority holding in any other federal circuit holds to the contrary. Id.; see infra Part IV.

Finally, immunities are grounded in the nature of the act, not the identity of the actor. Forrester v. White, 484 U.S. 219, 229-30 (1988). Forrester held that even a judge is not immune from suit for acts undertaken outside his or her judicial capacity — such as hiring and firing court personnel. Id. ¶

As discussed herein, kidnapping and extrajudicial killing violate peremptory {p.21} norms of international law, domestic law, and treaties to which the United States is a party and are acts of the sort for which immunity never attaches. ¶

In order to succeed in its brazen claim of absolute immunity, the United States would have to present some evidence that murder is within the scope of duty of officers such as Defendants Kissinger and Helms.

Accordingly, Plaintiffs respectfully request that this Court deny Defendants’ Motion to Dismiss based upon immunity claims of Defendants Kissinger and Helms. ¶

In the alternative, Plaintiffs request that the Court stay determination of this issue and provide for reasonable discovery and an evidentiary hearing necessary to properly rule on the immunity issue.

IV.
Complaint Presents Cognizable Claims
Not Barred by Immunity

Even under the most charitable reading of Defendants’ acts surrounding the events in question, they planned, conspired to commit, and aided and abetted the kidnapping and killing of General Rene Schneider. ¶

They hatched the plan from Washington, D.C. and lined up conspirators in Chile to carry it out. Compl. ¶¶ 24-26. ¶

They sent their confederates guns and money to help carry out the conspiracy. Compl. ¶¶ 27, 28, 35-40. ¶

And they covered up their involvement for decades. Compl. ¶ 20. ¶

That no one, whether senior government official or petty criminal, may extrajudicially abduct, terrorize, torture, or kill another human being is a nonderogable norm of the laws of nations, 11  fundamental maxim of treaties to which the United {p.22} States is a signatory, 12  and basic tenet of statutes of the United States. 13  ¶

Claims of kidnapping, torture, and wrongful killing are always cognizable. 14  ¶

As explained by the United States Court of Appeals for the Ninth Circuit, ¶

Marcos, 25 F.3d at 1475 {78kb.html}. ¶

Defendants claim:

Memo. at 4-5 (quoting the Church Committee with approval) (internal citations omitted).

Plaintiffs maintain the Church Committee severely understates the involvement and culpability of “American officials,” to wit Defendants Kissinger and Helms, for reasons previously stated herein. However, even assuming arguendo that Defendants’ concession is accurate:

Criminal Law § 7.7(b), 696.

Defendants also seek to minimize their true role in General Schneider’s wrongful death by claiming:

Memo. p.4 (internal citations omitted)

While Plaintiffs dispute this characterization, even by the most charitable reading, such action does not amount to a withdrawal from culpability for General Schneider’s death. Again, Criminal Law is illustrative:

Criminal Law, § 6.5(f) at 605.

Defendants would have this Court dismiss as non-cognizable claims that even by their own account amount to kidnapping, torture, and depraved heart murder. ¶

Such cannot be the law and Plaintiffs respectfully request that this Court deny Defendants’ Motion to Dismiss.

A.
Alien Tort Claims Act

The Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), provides both jurisdiction and a cause of action that falls within the second exception to the Westfall Act. See 28 U.S.C. § 2679(b)(2)(B) (claims “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized”). {p.24}

The leading case interpreting the ATCA is Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 15  ¶

Since Filartiga, a majority of courts have interpreted section 1350 as providing both a private cause of action and a federal forum where aliens may seek redress for violations of international law. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 n.5 (D.C. Cir. 1985) (“[N]othing in today’s decision necessarily conflicts with the decision of the Second Circuit in Filartiga v. Pena-Irala”}; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-96 (D.C. Cir. 1984) (Edwards, J., concurring) (concluding ATCA does provide cause of action); Kadic v. Karadzic {72kb.html, 100 kb rtf}, 70 F.3d 232, 236 (2d Cir. 1995) (“[The] Act appears to provide a remedy for the appellants’ allegations of violations related to genocide, war crimes, and official torture....”); Hilao v. Estate of Marcos (In re Estate of Ferdinand Marcos Human Rights Litigation) {78kb.html}, 25 F.3d 1467, 1475 (9th Cir. 1994) (“We thus join the Second Circuit in concluding that the Alien Tort Act, 28 U.S.C. § 1350 creates a cause of action for violations of specific, universal and obligatory international human rights standards....”), cert. denied, 513 U.S. 1126 (1995); Estate of Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1358 (S.D. Fla. 2001) {109kb.html, menu} (same); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D. Cal. 1987) {105kb.html} (same); Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D. Mass. 1995) (“§ 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law ... without recourse to other law as a source of the cause of action.”); Paul v. Avril, 812 F.Supp. 207, 212 (S.D. Fla. 1993) (“The plain language of the statute and the use of the words ‘committed in violation’ strongly implies that a well pled tort[,] if committed in violation of the law of nations, would be sufficient [to give rise to a cause {p.25} of action].”); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir.) {15 kb txt, 21kb.pdf} (same), cert. denied, 519 U.S. 830 (1996).

Defendants cite United States v. Smith, 499 U.S. 160, 173-74 (1991), apparently for the assertion that “it is clear that § 1350 creates no substantive rights or duties such that § 1350 can be ‘violated’.” Memo. at 25. However, this statement is at best misleading. Smith involved application of the Gonzalez Act, 10 U.S.C. § 1089 related to medical malpractice by a federally-employed doctor. Nowhere in the Opinion, Dissent, or even the Syllabus does Smith make even passing reference to the “Alien Tort Claims Act,” “ATCA,” or “§ 1350.” It, therefore, most certainly is not clear that “§ 1350 creates no substantive rights or duties such that § 1350 can be ‘violated.’” Indeed, as discussed supra, most courts addressing the issue have found the ATCA provides both jurisdiction and a private cause of action. It, therefore, necessarily satisfies the § 2679(b)(2)(B) exception and Defendants Kissinger and Helms are not immune from suit.

B.
28 U.S.C. § 1331

The claims asserted in the Complaint are also cognizable because causes of action for violations of international law “arise under” the laws of the United States for purposes of jurisdiction under 28 U.S.C. § 1331. For more than a hundred years it has been settled that federal common law incorporates international law. See, e.g., The Nereide, 13 U.S. 388, 423 (1815) {justia, lexisone}; The Paquete Habana, 175 U.S. 677, 700 (1900). More recently, the Supreme Court has held that interpretation of international law is a federal question. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Thus, a case presenting claims arising under customary international law arises under the laws of the United States for purposes of federal question jurisdiction. Forti, 672 F.Supp. at 1544 {105kb.html}. Section 1331 provides an independent basis for subject-matter jurisdiction over all claims alleging violations of international law, relying on the settled {p.26} proposition that federal common law incorporates international law. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litigation (Marcos I) {54kb.html}, 978 F.2d 493, 502 (9th Cir. 1992), cert. denied, 508 U.S. 972 (1993); Filartiga, 630 F.2d at 886.