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Full-text: November 9 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.	)
	)

Defendants' Motion to Dismiss

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the defendants, the United States of America, Henry A. Kissinger, and Richard M. Helms, hereby move to dismiss the complaint on the grounds that the Court lacks jurisdiction over the subject matter and the complaint fails to state a claim upon which relief can be granted. A Certification of Scope of Employment pursuant to 28 U.S.C. § 2679(d)(1), and a Memorandum of Points and Authorities have been filed in support of this motion. A proposed Order has been tendered for the Court’s convenience.

Wherefore the defendants move for the relief described above.

Respectfully submitted,

{Signatures identical to those below}

Attorneys for the United States of America,
Henry A. Kissinger and Richard M. Helms

Dated: November 9, 2001

______________________

Statement of the Case

A.  The Nature of the Case

The plaintiffs in this action are citizens of Chile who seek damages allegedly resulting from the death of their father, General Rene Schneider, the former Commander-in-Chief of the Chilean Army. A personal representative of General Schneider’s estate also is a plaintiff. The plaintiffs sue the United States of America along with former Senior Assistant to the President for National Security Affairs Henry A. Kissinger 1  and former Director of Central Intelligence, Richard M. Helms for actions taken in their former official capacities. For the reasons explained below, all of the plaintiffs’ claims are nonjusticiable, the Court lacks jurisdiction over the subject matter, and the complaint in any event fails to state claims upon which relief can be granted. Accordingly, this action should be dismissed. 2 

B.  The Facts of the Case

1.  According to the complaint’s allegations — which are vigorously contested — in 1970, while serving as Senior Assistant to the President for {p.2} National Security Affairs, Dr. Kissinger “designed, ordered, implemented and directed a program of overt and covert activities in Chile with known plotters of a coup d’etat against Chilean President-elect Salvador Allende, leading to the assassination of General Schneider in violation of domestic and international law.” Compl. ¶ 6. Similarly, the complaint alleges that Mr. Helms “designed and instructed the CIA, the United States Government, and known coup plotters to play a direct role in the assassination of General Schneider, which was necessary to effectuate a military coup d’etat in Chile.” Id. ¶ 6. According to the complaint, Dr. Kissinger and Mr. Helms took these steps on the direct order of the President of the United States. Id. ¶ 18.

The complaint further alleges that in order for the various military factions in Chile to succeed in a coup, it was necessary to neutralize General Schneider, the Chilean Army Commander-in-Chief. Two groups of Chilean coup plotters formulated plans to kidnap General Schneider. Compl. ¶¶ 29, 35. On both October 19 and October 20, 1970, two unsuccessful kidnapping attempts were made. See id. ¶¶ 38, 39. On October 22, 1970, coup plotters attempted a third effort at kidnapping General Schneider. This time shots were fired and General Schneider was wounded. See id. ¶ 40. General Schneider died from his wounds three days later, on October 25, 1970. See id. ¶ 43. {p.3}

According to the complaint, Dr. Kissinger and Mr. Helms were informed that coup plotters were planning to kidnap General Schneider. See Compl. ¶ 29. The complaint further alleges that no United States official “gave any instruction to leave General Schneider unharmed” and that it was foreseeable to United States officials that “the kidnapping would create a grave risk of death to General Schneider and consequent harm to his family.” Id. For these reasons, the plaintiffs allege that “Defendants’ deliberate and willful acts and omissions were the proximate cause of General Schneider’s death.” Id. ¶ 43.

2.  The United States, Dr. Kissinger, and Ambassador Helms vigorously controvert the complaint’s allegations, which are contrary to both the historical record and the findings of a Select Committee of the United States Senate. At a point far closer in time to the events placed at issue here, the Church Committee, as it was known, investigated “the full range of governmental intelligence activities and the extent, if any, to which such activities were ‘illegal, improper, or unethical.’” Alleged Assassination Plots Involving Foreign Leaders: An Interim Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate, S. Rep. No. 94-465 at 1 (1975) (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}. ¶

The Committee had before it all relevant Executive Branch documents, which {p.4} included “raw files from agencies and departments, [and] the White House.” Id. at 2 & n.2.

Among other things, the Church Committee found that ¶

Id. at 256 {69kb.html/gif}. The Committee also found that ¶

Id. at 5 {72kb.html/gif}. ¶

Indeed, as recounted in the Church Committee Report, in a meeting held on October 15, 1970, seven days prior to the attempted kidnapping that led to General Schneider’s death, Dr. Kissinger and other officials decided to abandon, at least temporarily, any support or encouragement of a coup led by retired Chilean General Roberto Viaux. See id. at 242 {68kb.html/gif}. ¶

The reason for this decision, according to the Church Committee Report, was United States officials’ belief that such a coup had little chance of success. See id. ¶

Nevertheless, after a Viaux associate was informed on October 17, 1970 of the United States’ decision, the Viaux associate responded that the United States’ position did not matter because “they had decided to proceed with the coup in any {p.5} case.” Id. at 243 {68kb.html/gif}. ¶

The Committee’s report continued that ¶

Id. at 5 {72kb.html/gif}. ¶

Finally, the Committee concluded that ¶

Id. 3 

C. The Claims at Issue

The plaintiffs seek to predicate liability on a variety of sources, including the ¶

Compl. ¶ 1. ¶

Jurisdiction is predicated on 28 U.S.C. §§ 1331, 1350, and 1367. See Compl. ¶ 1.

Argument

Introduction

Thirty years removed from the events at issue it should not be forgotten that the United States’ support of Chilean coup plotters came against the backdrop of United States-Soviet rivalry and a number of international crises, all of which in one way or another implicated persistent tension between the superpowers. ¶

For {p.7} example, in the spring of 1970, the Soviet Union moved troops and air defense missiles into Egypt to strengthen the defense of the Suez Canal. See H. Kissinger, The White House Years {LCCN: 79090006}, 569, 572 (1979). ¶

In September, several aircraft highjackings occurred in the Middle East. Syria invaded Jordan, where the captured aircraft and their passenger hostages had been flown. United States forces in Europe were placed on alert before the United States both prevailed upon the Soviet Union to pressure the Syrians to withdraw and successfully negotiated an end to the hostage crises. Id. at 594-631. ¶

While these events were playing out in the Middle East, information came to light that the Soviets — in disregard of the secret understanding regarding Soviet forces in Cuba reached between President Kennedy and Premier Khrushchev at the end of the Cuban missile crisis — were building a submarine base in Cuba. That information, and the prospect for yet another superpower confrontation over Cuba, became public on September 25, 1970. Id. at 632-52. ¶

These events, all of which occurred at the same time that the United States was trying to negotiate an end to the Viet Nam War, heightened the United States’ concern over the prospect that Chile under a Marxist president might become yet another Communist base in the Western Hemisphere. See Id. at 978. {p.8}

Adjudication of the plaintiffs’ tort claims would involve judicial review of the decisions of the President of the United States and his closest advisors, based upon their assessment of the national interest, concerning United States foreign policy with respect to Chile. Lawsuits, however, are not the forum in which to judge the wisdom of United States foreign policy. That is particularly so here. The plaintiffs’ various claims in this case present no judicially cognizable question. As explained below, dismissal of this case therefore is required under the political question doctrine. Moreover, the Court lacks subject matter jurisdiction over the plaintiffs’ claims against the United States, which has not waived its sovereign immunity in the circumstances alleged in the complaint. The complaint’s factual allegations, even assuming they were true, fail to allege any actionable claim against Dr. Kissinger and Ambassador Helms, who are sued for acts taken in an official capacity. They are immune from suit, and accordingly, the plaintiffs have no remedy against Dr. Kissinger and Mr. Helms as a matter of law.

I.
The Political Question Doctrine Bars
All of the Plaintiffs’ Claims.

“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines {p.9} of the Executive Branch.” Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986). As the doctrine has developed, it has come to be recognized “as essentially a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 217 (1962). Several factors help identify those cases that present such a non-justiciable political question:

Id. at 217. Whenever even one of these factors is “inextricable from the case at bar,” the suit must be dismissed because its judicial resolution can be obtained only by the resolution of an otherwise non-justiciable question. See id.

The present case quite plainly falls within several of these factors. Although the plaintiffs have formulated their claims as seeking the vindication of personal rights, those claims directly challenge the legality of actions undertaken by Executive Branch officials in response to a perceived national security threat {p.10} posed by events occurring in a foreign nation. The plaintiffs allege that “President Nixon met with Defendant Kissinger, Defendant Helms and Attorney General John Mitchell, and ordered that the necessary steps be taken to prevent Dr. Allende from becoming President of Chile.” Compl. ¶ 18. Further, the President “instructed the CIA to ‘play a direct role in organizing a military coup d’etat in Chile’ and to do quickly whatever could be done to prevent Dr. Allende from being seated.” Id. In addition, “President Nixon expressed he was ‘not concerned’ about the ‘risks involved,’ and authorized $10,000,000 in funds to effect a military coup, requiring a plan of action to be drafted within 48 hours.” Id. As a result of the President’s order, “the CIA established, maintained contacts with, and worked with three different groups of coup plotters.” Compl. ¶ 25. The complaint continues that “[a]ll groups [of plotters] made it clear, and Defendants were aware, that any coup would require the removal of General Schneider * * * .” Id. Finally, the complaint alleges that United States support of Chilean coup plotters proximately caused General Schneider’s death in violation of international and domestic law. See id. ¶ 8.

To begin, there is a clear textually demonstrable commitment of the power to conduct foreign affairs to the Executive and Legislative Branches. It is elementary that “[t]he conduct of the foreign relations of our Government is {p.11} committed by the Constitution to the Executive and Legislative — ‘the political’ — Departments.” Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 934 (D.C. Cir. 1988). The actions attributed to President Nixon , Dr. Kissinger and Ambassador Helms fall well within the conduct of foreign relations. A government was poised to come to power in Chile that the President deemed inimical to the United States’ interests. How to react to that possibility is indisputably a question of foreign relations committed by the Constitution to the so-called “political” branches of the government.

Because the events at issue so clearly implicate a matter textually committed to Executive Branch discretion, it should come as little surprise that the second and third Baker factors — a lack of judicially discoverable and manageable standards for resolving the matter, and the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion — also apply. Deciding whether and by what means to respond to the possibility that a government inimical to the United States’ interests may come to power in a foreign nation assuredly entails a “policy determination of a kind for nonjudicial discretion” and is a matter for which judicially discoverable and manageable standards just do not exist. Stated another way, there is no discernable legal {p.12} principle by which a court can decide that an Allende government would have been better or worse for the United States’ interests and likewise no legal principle by which a court could determine whether the United States’ interests would be better or worse served by assisting those plotting to form an alternative government. Cf. Crosby v. National Foreign Trade Council, 530 U.S. 363, 386 (2000) (“We have * * * not only recognized the limits of our own capacity to ‘determin[e] precisely when foreign nations will be offended by particular acts,’ * * * but consistently acknowledged 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.’” (citations omitted)).

The political character of questions such as these is readily apparent, as recognized in cases treating as a political question the matter of recognition of foreign governments, for example. See, e.g., Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938) (“What government is to be regarded * * * as representative of a foreign state is a political rather than a judicial question, and is to be determined by the political department of the government.”). See also United States v. Pink, 315 U.S. 203 (1942). Accord Baker, 369 U.S. at 212 (observing that “recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called ‘a {p.13} republic of whose existence we know nothing.’” (quoting United States v. Klintock, 18 U.S. (5 Wheat.) 144, 149 (1820) {justia, altlaw, lexisone}); Antolok v. United States, 873 F.2d 369, 381-82 (D.C. Cir.1989) (Sentelle, J., concurring). Disputes arising from the President’s decision to deploy military force against a foreign government similarly have been recognized as raising a nonjusticiable political question. See, e.g., Industria Panificadora, SA v. United States, 763 F.Supp. 1154, 1159-61 (D.D.C. 1991), aff’d on other grounds, 957 F.2d 886 (D.C. Cir. 1992). See also Eminente v. Johnson, 361 F.2d 73 (D.C. Cir. 1966) (per curiam).

Quite logically, the decision to lend covert assistance to those who would change a foreign government from within — perhaps through force — also calls for the exercise of a policy discretion clearly of a non-judicial nature. Such judgments also fall in a realm in which there are no judicially discoverable or manageable standards for resolving controversies implicating the wisdom or propriety of the challenged government action. See, e.g., Sanchez-Espinoza v. Reagan, 568 F.Supp. 596, 600 (D.D.C. 1983), aff’d on other grounds, 770 F.2d 202 (D.C. Cir. 1985). See also Chaser Shipping Corp. v. United States, 649 F.Supp. 736, 738-39 (S.D.N.Y. 1986) (suit seeking damages arising from CIA mining of foreign harbor presented non-justiciable political question), aff’d 819 F.2d 1129 (2d Cir. 1987). As Dr. Kissinger himself has written, “[w]hether and to what extent the United {p.14} States should seek to affect the domestic developments in other countries is a complicated question, the answer to which depends on a variety of elements, including one’s conception of the national interest.” Kissinger, at 658.

The conclusion that this case presents a non-justiciable political question is not altered, moreover, by the fact that the plaintiffs seemingly plead this case as if it were a personal injury tort action under District of Columbia law and the Alien Tort Act, 28 U.S.C. § 1350 (which allows an alien to bring suit “for a tort only, committed in violation of the law of nations or a treaty of the United States”). Fairly read, the complaint alleges that President Nixon ordered the CIA to play a direct role in organizing a military coup in Chile and to do whatever it took to prevent Allende from assuming the Chilean presidency. The CIA, according to the complaint, actively provided support and assistance to groups planning a military coup.

Clearly the plaintiffs’ allegations cannot be addressed without passing on the means by which the United States reacted to the prospect of an Allende presidency, namely providing support and encouragement to military coup plotters with the unintended result that some of those plotters killed General Schneider in a botched kidnapping attempt. Efforts to apply tort or even international law concepts to these alleged facts would serve only to subject to judicial scrutiny {p.15} policy decisions regarding the conduct of foreign affairs and covert intelligence activities. The wisdom, necessity or (in tort law terms) “reasonableness” of taking such steps on the United States’ behalf are determinations plainly of a non-judicial character and not susceptible to analysis through any judicially discoverable or manageable criteria. See Sanchez-Espinoza, 568 F.Supp. at 600. See also Joo v. Japan {142kb.pdf}, No. Civ.A. 00-02233 (HHK), slip op. at 12 (D.D.C. Oct. 4, 2001) (2001 WL 1246419) (finding on this basis that damages claims brought against Japan by women enslaved during World War II presented a nonjusticiable political question). To hold otherwise in this context would mean that virtually any foreign citizen claiming personal injury or death as the result of the conduct of United States’ foreign policy toward his country could maintain an action challenging that policy in our courts. Cf. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (“[A]s a general matter the danger of foreign citizens’ using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.”). That prospect not only would risk “the potentiality of embarrassment from multifarious pronouncements by various departments on one question” of foreign policy, it would entail the very judicial encroachment upon the Executive and Legislative power that the political question doctrine precludes. {p.16}

Because these considerations are inextricable from the case at bar, the plaintiffs’ claims arising from General Schneider’s death present nonjusticiable political questions. Accordingly, the complaint should be dismissed.

II.
Sovereign Immunity Bars
the Plaintiffs’ Claims Against the United States.

“It is well established that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’” In re Sealed Case, No. 99-3091 {70kb.html}, 192 F.3d 995, 999 (D.C. Cir. 1999) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). It is similarly well established that “[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, see, e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37 * * * (1992), and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990)). See also Floyd v. District of Columbia, 129 F.3d 152, 156 (D.C. Cir. 1997) {38kb.html, 18 kb txt} (“waivers of sovereign immunity must be unequivocally expressed in statutory text; we cannot imply a waiver of sovereign immunity”).

No waiver of the United States’ sovereign immunity embraces the plaintiffs’ various theories of recovery asserted in their complaint. Although the Federal {p.17} Tort Claims Act, 28 U.S.C. §§ 1346(b)(1); 2671-2680 (1994 & Supp. IV 1998), is a limited waiver of sovereign immunity with respect to federal employees’ torts committed in the scope of office or employment, the plaintiffs expressly disclaim reliance on the FTCA. See Compl. ¶ 3. In addition, the plaintiffs acknowledge that they have not completed the FTCA administrative claim requirement, see 28 U.S.C. § 2675(a), a jurisdictional prerequisite to instituting suit under the FTCA. See Hohri v. United States, 782 F.2d 227, 245 (D.C. Cir. 1986), vacated on other grounds sub nom. United States v. Hohri, 482 U.S. 64 (1987). 4 

Because the plaintiffs have not completed the FTCA administrative claim procedure, moreover, this action must be dismissed as to all defendants notwithstanding the United States’ substitution of itself in place of Dr. Kissinger and Ambassador Helms pursuant to 28 U.S.C. § 2679(d)(1). Although the FTCA, as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, provides for substitution of the United States in place of employees sued in a personal capacity, the Act also provides that upon substitution the suit {p.18} “shall proceed in the same manner as any action against the United States filed pursuant to section 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions.” 28 U.S.C. § 2679(d)(4) (emphasis added). Because the plaintiffs have not completed the administrative claim process, see Compl. ¶ 3, this action must be dismissed for want of subject matter jurisdiction. 5 

Instead of relying on the FTCA waiver of sovereign immunity, the plaintiffs’ suit against the United States appears to rest on two broad postulates: First, that “the acts complained of are violations of peremptory norms of international law as to which no person or state may claim immunity;” and second, that “under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-11 (1988), the United States has waived the immunity of foreign sovereigns, thereby allowing them to be hailed [sic] into the courts of the United States under specific exceptions, and principles of comity demand the waiver of sovereign immunity of the United States under those same limited exceptions.” Compl. ¶ 4.

That no state may claim immunity from suit for a violation of peremptory norms of international law is hardly apparent. See, e.g., Princz v. Federal {p.19} Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). In all events, the plaintiffs’ first proposition is unsound because it ignores the well-settled case law recognizing that it is for Congress to conclude that the United States should be subject to suit for damages in cases alleging violations of peremptory norms of international law. See Lane, 518 U.S. at 192 (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text.”) (emphasis added). None of the statutes on which the plaintiffs invoke jurisdiction — 28 U.S.C. §§ 1331, 1350, and 1367 — contains the required clear and unequivocal language manifesting a congressional intent to waive sovereign immunity. Section 1331 merely confers jurisdiction upon federal courts to hear cases arising under federal law, and it is well-settled that such general jurisdiction-conferring statutes do not waive sovereign immunity. See, e.g., Koehler v. Commissioner of Internal Revenue {20kb.html}, 153 F.3d 263, 266 n.2 (5th Cir. 1998). Likewise, it is well-established that the Alien Tort Claims Act, 28 U.S.C. § 1350, does not waive the United States’ sovereign immunity. See, e.g., Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza v. Reagan, 770 F.2d at 207. The supplemental jurisdiction statute, 28 U.S.C. § 1367, obviously no more waives sovereign immunity than does § 1331 or § 1350. Similarly, the TVPA, various treaties and {p.20} other sources of international law to which the plaintiffs refer in their complaint do not operate as a waiver of sovereign immunity. None contains the requisite clear and unequivocal statement of Congressional intent to waive the United States’ sovereign immunity. See Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980).

In light of these principles, the plaintiffs’ second postulate — that under the Foreign Sovereign Immunities Act (“FSIA”) “the United States has waived the immunity of foreign sovereigns, thereby allowing them to be hailed [sic] into the courts of the United States under specific exceptions, and principles of comity and equity demand the waiver of sovereign immunity of the United States under those same limited exceptions,” Compl. ¶ 4(b) — is no help. Whatever inequities the plaintiffs might see in the claimed different scope of sovereign immunity available to the United States, on the one hand, and foreign sovereigns on the other, is for Congress to remedy. Certainly the assertedly broader scope of sovereign immunity available to the United States does not justify the plaintiffs’ novel invitation essentially to ignore the settled principle that Congress decides whether and under what circumstances the United States shall be amenable to suit. In the Federal Tort Claims Act, Congress has enacted a limited waiver of the United States’ sovereign immunity. Neither a particular plaintiff’s dissatisfaction with the {p.21} FTCA’s scope nor any principle of international “comity” or “equity” justifies the plaintiffs’ invitation essentially to rewrite Congress’ handiwork to their liking.

Finally, it should not be overlooked that while foreign sovereign immunity exists as a matter of comity, the United States’ sovereign immunity, to the extent not waived by Congress, exists as a matter of constitutional principle, namely the separation of powers. See Sanchez-Espinoza, 770 F.2d at 207 n.5. 6  Whatever asymmetry the plaintiffs perceive between the FTCA and the FSIA is, therefore, for Congress to remedy, if the need exists.

Because no clear and unequivocal waiver of the United States’ sovereign immunity authorizes the plaintiffs’ suit in the circumstances presented here, the Court lacks subject matter jurisdiction, and the claims against the United States should be dismissed.

III.
The Complaint States No Cognizable Claims
Against Dr. Kissinger or Ambassador Helms.

The plaintiffs also sue former National Security Advisor Henry A. Kissinger and former Director of Central Intelligence Richard M. Helms in their individual capacities for damages. As explained below, Dr. Kissinger and Ambassador {p.22} Helms are immune from suit in their individual capacities, and the claims against them should be dismissed. The Westfall Act amendments to the Federal Tort Claims Act shield Dr. Kissinger and Ambassador Helms from suit for the plaintiffs’ claims under treaties, international law, and District of Columbia law. In addition, federal common law bars the plaintiffs’ claims based on District of Columbia local tort law. The plaintiffs also state no actionable claim against Dr. Kissinger and Ambassador Helms under the Torture Victim Protection Act of 1991, and Dr. Kissinger and Ambassador Helms are in any event immune from suit under the TVPA.

A.  Dr. Kissinger and Ambassador Helms
are Entitled to Absolute Immunity from Suit.

Commonly referred to as the “Westfall Act,” 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), generally confers upon all federal officers and employees a broad absolute immunity from suit for their “negligent or wrongful act[s] or omission[s]” while acting in the scope of office or employment. See 28 U.S.C. § 2679(b)(1); United States v. Smith, 499 U.S. 160, 163 (1991). See also Kimbro v. Velten, 30 F.3d 1501, 1504 (D.C. Cir. 1994). Because the Attorney General’s designee has certified that Dr. {p.23} Kissinger and Ambassador Helms were acting in the scope of office or employment at the time of the incidents out of which the plaintiffs claims arose, Dr. Kissinger and Ambassador Helms are entitled to be “dismissed from the action and the United States is substituted as defendant.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995).

With the possible exception of any claim under the Torture Victim Protection Act (discussed below) the Westfall Act disposes of all of the plaintiffs’ claims against Dr. Kissinger and Ambassador Helms, including the claims under treaty, international law and the Alien Tort Claims Act. The Westfall Act was intended to confer upon federal officials a form of absolute immunity from suit in all but two narrow categories of federal claims for relief. As the Act is written, it precludes any civil suit against a government employee based upon “the negligent or wrongful act or omission of [that] employee of the Government while acting within the scope of office or employment,” and makes an FTCA suit against the United States plaintiffs’ exclusive means of recovery on any such claims. See 28 U.S.C. § 2679(b)(1). “Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.” Id. {p.24}

There are only two exceptions to this broad rule of statutory immunity. First, Congress preserved personal liability in so-called “Bivens actions,” i.e., suits against government officials in an individual capacity to recover money damages for alleged violations of the Constitution, e.g., Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See 28 U.S.C. § 2679(b)(2)(A). That exception is inapplicable here, where the plaintiffs have not alleged that Dr. Kissinger or Ambassador Helms violated the United States Constitution.

Second, Congress preserved personal liability for certain federal statutory claims — those which are “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). With perhaps the exception of the plaintiffs’ TVPA claim, this second exception to the general rule of immunity also does not apply to the claims at issue here. To the extent the plaintiffs rely on various treaties or on sources of international law as the basis for the rights they claim were infringed, see Compl. ¶ 1, their suit simply is not one for “a violation of a statute of the United States.” The same obviously is true of the plaintiffs’ various claims under District of Columbia law. {p.25}

This analysis is unchanged by the plaintiffs’ reliance on the Alien Tort Claims Act, 28 U.S.C. § 1350. Section 1350 provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That the official conduct alleged here even is actionable under § 1350 is open to doubt. 7  In any event, it is clear that § 1350 creates no substantive rights or duties such that § 1350 can be “violated,” a necessary requirement for application of the § 2679(b)(2)(B) exception to immunity. See Smith, 499 U.S. at 173-74. Instead, § 1350 contemplates that the district courts can entertain an action for the violation of substantive rights conferred elsewhere, namely by the law of nations or by a treaty of the United States. Accordingly, because United States officials cannot “violate” § 1350, the liability preserving exception of § 2679(b)(2)(B) does not apply to such claims. See Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54 (9th Cir. 2001) {64kb.pdf, 64kb.pdf} (so holding) {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. See also United States v. Smith, 499 U.S. at 173-74. Dr. Kissinger and Ambassador Helms remain immune from suit. {p.26}

B.  Common Law Immunity
Also Bars the Plaintiffs’ Claims.

Although it is a fundamental principle of our federal system of government that “[t]here is no federal general common law,” Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis added), it is equally well-established that “a few areas, involving ‘uniquely federal interests,’ * * * are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts — so-called ‘federal common law.’” Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988) (citations omitted). As demonstrated below, this principle defeats the plaintiffs’ District of Columbia tort law claims challenging the manner in which Dr. Kissinger and Ambassador Helms conducted their official responsibilities on behalf of the United States.

For federal displacement of state law to happen, two conditions must be met. First, the subject matter at issue must be an area of “uniquely federal interest.” Id. at 504. The Boyle court identified the “liability of federal officials for actions taken in the course of their duty” id. at 505, as well as “the liability of independent contractors performing work for the Federal Government,” id. at 505 n.l, as two such areas of “uniquely federal interest.” See id. at 505. The Court {p.27} explained that both examples “obviously implicated the same interest in getting the Government’s work done.” Id.

The second condition for the displacement of state law by a federal common law rule requires that “a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law,’” id. at 507, or that “the application of state law would ‘frustrate specific objectives’ of federal legislation * * * .” Boyle, 487 U.S. at 507 (citations omitted). When the area in question is one of uniquely federal concern, moreover, “[t]he conflict with federal policy need not be as sharp as that which must exist for ordinary pre-emption when Congress legislates ‘in a field which the States have traditionally occupied.’” Id. (citation omitted). “[T]he fact that the area in question is one of unique federal concern changes what would otherwise be a conflict that cannot produce pre-emption into one that can.” Id. (footnote omitted).

Those two conditions for displacement of state tort law plainly are triggered here. First, the plaintiffs seek to hold Dr. Kissinger and Ambassador Helms personally liable for their conduct in office. This lawsuit plainly implicates the government’s ability to “get its work done.” Boyle, 487 U.S. at 505. That general interest in getting the government’s work done consistently has been recognized to justify some form of federal common law rule exempting federal officials from {p.28} state tort liability. See id. See also Westfall v. Erwin, 484 U.S. 292, 295 (1988); Howard v. Lyons, 360 U.S. 593, 597 (1959); Martin v. Malhoyt, 830 F.2d 237, 250-51 (D.C. Cir. 1987). In addition, this lawsuit implicates another, more particular, area of uniquely federal interest — the conduct of our nation’s foreign affairs. As we demonstrate, the plaintiffs’ efforts to hold high-level federal officials personally liable for their conduct of the nation’s foreign policy produces a sharp conflict between federal and state authority such that a federal common law rule of immunity must apply to defeat state tort liability.

“Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.” Hines v. Davidowitz, 312 U.S. 52, 63 (1941). The Constitution’s delegation of a variety of powers to the national government, and its denial to the States of a variety of other powers regarding relations with foreign governments has been recognized to vest in the national government exclusive authority to conduct the foreign relations of the United States. As the Supreme Court has explained, “[p]ower over external affairs is not shared by the States; it is vested in the national government exclusively.” United States v. Pink, 315 U.S. at 233. This so-called “foreign affairs power of the federal government,” see, e.g., {p.29} National Foreign Trade Council v. Natsios {122kb.html}, 181 F.3d 38, 49 (1st Cir. 1999), aff’d on other grounds, sub nom. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), has been recognized to operate in a manner much like the “dormant” commerce power: Even in the absence of specific federal action, the power’s very delegation to the federal government operates to invalidate certain state action whose effect is inconsistent with that delegation’s purpose. See Zschernig v. Miller, 389 U.S. 429, 440-41 (1968). See also Natsios {122kb.html}, 181 F.3d at 52-54. 8  {p.30}

Accordingly, in Zschernig, the Supreme Court held unconstitutional — under the dormant “foreign affairs power” — an Oregon probate statute requiring escheat where a nonresident alien claimed real or personal property except under certain conditions. The Supreme Court began by noting that in Clark v. Allen, 331 U.S. 503 (1947), it had upheld a probate statute containing a “general reciprocity clause” which “would have only ‘some incidental or indirect effect in foreign countries.’” Zschernig, 389 U.S. at 433 (quoting Clark, 331 U.S. at 517). In addressing the Oregon statute, the Court noted that since its decision in Clark, “the probate courts of the various States have launched inquiries into the type of governments that obtain in particular foreign nations — whether aliens under their law have enforceable rights, whether the so-called ‘rights’ are merely dispensations turning upon the whim or caprice of government officials, whether the representation of consuls, ambassadors and other representatives of foreign nations is credible or made in good faith, whether there is in the actual administration in the particular foreign system of law any element of confiscation.” Id. at 433-34. The Court observed that, consistent with this trend, the Oregon statute “as construed seems to make unavoidable judicial criticism of {p.31} nations established on a more authoritarian basis than our own.” Id. at 440. That course of decision, the Court explained, had the potential to adversely affect foreign relations because other nations might react unfavorably to such treatment of their citizens based on state courts’ evaluations of foreign governments and their policies and thereby trenched upon the exclusive federal power regarding foreign affairs. See id. at 440-41.

The continued vitality of Zschernig and its “dormant foreign affairs power” 9  doctrine was recognized recently by the Court of Appeals for the First Circuit which held unconstitutional a Massachusetts law restricting the ability of the State and its agencies to contract with firms conducting business in Burma. See Natsios {122kb.html}, 181 F.3d at 49-61. Rejecting Massachusetts’ argument that its Burma law was permissible in light of Zschernig as merely having an “incidental or indirect effect in foreign countries,” the First Circuit reasoned that “Zschernig stands for the principle that there is a threshold level of involvement in and impact on foreign affairs which the states may not exceed.” Natsios {122kb.html}, 181 F.3d at 52.

Although the exact scope of Zschernig’s broad holding remains to be explored, see Natsios {122kb.html}, 181 F.3d at 57, the fact that the federal government’s so- {p.32} called “foreign affairs power” alone can render state action unconstitutional — even in the absence of federal action — serves to illustrate that foreign affairs is one of those “few areas, involving ‘uniquely federal interests,’ * * * [that] are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary,” by federal common law rules. Boyle, 487 U.S. at 504. In this instance, the plaintiffs would have District of Columbia tort law applied to judge the actions of United States officials carrying out orders of the President in the realm of foreign affairs. See Compl. ¶¶ 1, 48, 55, 61, 66, 71, 76, 83, 87. The states and the District, however, have no role to play in the formulation of foreign policy, whether it be by judging the policies of foreign governments, see, e.g., Zschernig, 389 U.S. at 440-41; Natsios {122kb.html}, 181 F.3d at 49-61, or by judging the actions of the President and his advisors in formulating and executing our own government’s policy in respect of foreign nations. If, as Zschernig teaches, “foreign policy attitudes, the freezing or thawing of the ‘cold war’ and the like” are “matters for the Federal Government, not for local probate courts,” id. at 437-38, then assuredly passing upon the means and ends of United States foreign policy is for the President and the Congress, not for local courts adjudicating personal injury tort suits. {p.33}

In sum, the plaintiffs’ claims in this case indisputably implicate an area of uniquely federal concern. That alone lessens the degree of conflict between federal and state policy needed for displacement of state law and application of an appropriate federal common law rule. See Boyle, 487 U.S. at 507. Where, as here, the States (and District of Columbia) have little or no traditional role in regard of the subject matter at issue, the application of a federal immunity rule barring suit is all the more essential to safeguarding the proper functioning of our federal system. To do otherwise would all but invite foreign nationals displeased with our nation’s foreign policy to bring suit for damages in a local courts across the country, or even perhaps seek injunctions in those forums. Accordingly, because Dr. Kissinger and Ambassador Helms were performing foreign policy and national security functions with respect to the events alleged in the complaint, they should be accorded absolute immunity from suit under state or District of Columbia law.

C.  The Plaintiffs State No Cognizable Claim
Under the TVPA.

1.  The plaintiffs also invoke the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (“TVPA”), as a basis for their suit. The TVPA was enacted more than twenty years after the events alleged in the complaint. It amends the Alien Tort Claims Act and provides for civil liability for {p.34} torture or extrajudicial killing carried out by an individual “under actual or apparent authority, or color of law, of any foreign nation.” TVPA § 2(a), 102 Stat. at 73. Although the TVPA is engrafted upon the Alien Tort Claims Act, it arguably contains in its definitions of “torture” and “extrajudicial killing” substantive norms such that the TVPA, unlike § 1350 generally, can be “violated.” Assuming for argument’s sake that a claim under the TVPA falls within the exception to absolute immunity provided in 28 U.S.C. § 2679(b)(2)(B), the complaint nevertheless states no cognizable claim against Dr. Kissinger or Ambassador Helms under the TVPA.

First, the TVPA imposes liability only upon individuals acting “under actual or apparent authority, or color of law of any foreign nation * * * .” TVPA § 2(a), 102 Stat. at 73 (emphasis added). Here, the plaintiffs allege that Dr. Kissinger and Ambassador Helms acted on the direct order of the President of the United States. See Compl. ¶ 18. High-level United States officials acting on the direct orders of the President assuredly do not act “under actual or apparent authority, or color of {p.35} law of any foreign nation” when carrying out the President’s orders. 10  By its terms, then, the TVPA affords no claim against Dr. Kissinger or Ambassador Helms. See also White v. Paulsen, 997 F.Supp. 1380, 1385 n.l (E.D. Wa. 1998) (“On its face, the right of action created by the Torture Victim Protection Act is limited to conduct taken under color of law of a ‘foreign’ nation. Pub. L. No. 102-256, § 2.”).

Second, even if the TVPA were not limited to those who act under color of foreign law, it could not be applied retroactively to impose liability upon United States officials. As a general rule, statutes will not be construed to have retroactive effect unless their language so requires. See Gersman v. Group Health Ass’n, Inc., 975 F.2d 886, 897-98 (D.C. Cir. 1992). A statute has retroactive effect if its application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).

Were it applied to Dr. Kissinger and Ambassador Helms here, the TVPA would have retroactive effect, something its language clearly does not require. {p.36} First, as demonstrated above, the 1988 Westfall Act amendments to the FTCA confer a form of absolute immunity from suit, see United States v. Smith, 499 U.S. at 163, broad enough to bar personal capacity damages claims for violations of treaties or the law of nations. See Alvarez-Machain, 266 F.3d at 1053-54 {64kb.pdf, 64kb.pdf} {superseded en banc, June 3 2003, 400kb.html} {reversed June 29 2004 (U.S., Nos. 03-339, 03-485) (785kb.pdf)}. The TVPA was enacted in 1992 and the plaintiffs’ claim under it either falls within the Westfall Act bar (like the rest of the plaintiffs’ claims), or falls within the Westfall Act exception preserving personal liability for claims “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). For the TVPA to meet the latter test, however, it must be regarded as a statutory cause of action creating duties the violation of which are actionable under 28 U.S.C. § 2679(b)(2)(B). See generally Smith, 499 U.S. at 173-74 (explaining when a statute triggers the § 2679(b)(2)(B) exception to immunity). In that case, however, the TVPA, when applied to United States officials, clearly “impair[s] rights a party possessed when he acted, increase[s] a party’s liability for past conduct, [and] impose[s] new duties with respect to transactions already completed,” and therefore is retroactive. Landgraf, 511 U.S. at 280. Simply put, had Congress not created the TVPA cause of action in 1992, Dr. Kissinger and Ambassador Helms would be immune from suit for the events on which the plaintiffs premise their TVPA claim. Thus, {p.37} application of the TVPA to pre-enactment conduct by United States officials would impose new violable statutory duties where none existed before; it would impair rights (immunity from suit) those officials possessed prior to enactment; and it would increase the liability of those officials for their pre-enactment conduct (a consequence of creating a new duty the violation of which carries no immunity under § 2679(b)(2)(B)).

Because the TVPA would operate in this manner if applied to United States officials sued for their pre-enactment conduct, the statute in that respect would have to be deemed “retroactive.” See Landgraf, 511 U.S. at 280. Yet nothing in the statutory language indicates that such a result is necessary to accomplish the TVPA’s purpose or that Congress ever intended such a result. To the contrary, all indications in the statutory text are that Congress never imagined application of the TVPA to United States officials acting in an official capacity in respect of the national security. Had Congress intended application (retroactive or otherwise) of the TVPA to United States officials, presumably it would have said so in language far more indicative of such an intent than the requirement that the defendant act “under actual or apparent authority, or color of law of any foreign nation.”

Because the TVPA does not apply to United States officials acting in an official capacity, and because the Act clearly can have no retroactive application {p.38} to such official acts, the complaint fails to state any cognizable claim under the TVPA and should be dismissed. 11 

D.  Qualified and Absolute Immunity Bar Plaintiffs’ Claims
Under the TVPA, Treaty and International Law.

Aside from the retroactivity problem, the TVPA claim also is barred, at a minimum, by Dr. Kissinger’s and Ambassador Helms’ qualified immunity from suit. Under Harlow v. Fitzgerald, 457 U.S. 800 (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818 (citation omitted). See also Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (“[O]fficials become liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages.”). Under this standard, “whether an official protected by qualified immunity may be {p.39} held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, Harlow, 457 U.S. at 819, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken, id., at 818.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). See also Butera v. District of Columbia, 235 F.3d 637, 646-47 (D.C. Cir. 2001).

In this instance, the events alleged in the complaint occurred in 1970. See, e.g., Compl. ¶¶ 7, 43. The TVPA was enacted on March 12, 1992, see 106 Stat. at 73, and accordingly was no