René Schneider et al. v. Henry Alfred Kissinger and United States of America et al.

Court	United States Court of Appeals, District of Columbia, United States
Case number	04-5199
Decision title	Appeal from the United States District Court
Decision date	28 June 2005
Parties	René Schneider Raúl Schneider José Pertierra, personal representative of the estate of General Schneider United States Henry Kissinger
Categories	Human rights violations, Torture
Keywords	torture, 1973 military coup, arbitrary detention, assault and battery, Chile, cruel, inhuman or degrading treatment, foreign interference, intentional infliction of emotional distress, negligence, political question doctrine, summary execution, wrongful death
Links	Appeal from the United States District Court

Summary

In the aftermath of the 1970 Chilean presidential elections, General Rene Schneider was killed as several military officers attempted to kidnap him. His sons allege that Henry Kissinger, then National Security Advisor to president Nixon, knew of the plans to kidnap Schneider and did nothing to stop it. The Court did not allow the case to proceed, stating that the claim made by Schneider’s sons could not be viewed separately from the context of US foreign policy at that time and that the judge should not rule on this. Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics.

The Court of Appeals agreed, refusing to differentiate between this particular alleged decision and the general tendencies of foreign policy in 1970. It therefore confirmed the dismissal of the case, stating that the Constitution had provided Congress with sufficient instruments to check the Executive’s conduct of foreign policy. It should be left to politicians to answer political questions, the Court reasoned, not to judges.

Procedural history

René and Raúl Schneider are the sons of the Chilean General René Schneider, who was kidnapped and assassinated in 1970 in the lead-up to the 1973 Chilean coup d’état. They filed their original complaint on 10 September 2001. Plaintiffs alleged that top US officials, including National Security Adviser Kissinger, planned to have democratically elected president Allende removed by military coup. General Schneider, the plaintiffs alleged, was considered an impediment to achieving this goal. Plaintiffs alleged that the defendants knew of the plans to kidnap Schneider, but that they never gave any instruction to leave him unharmed. The plaintiffs claim that it was foreseeable that the kidnapping would create a grave risk of death to Schneider and consequent harm to his harm. Schneider was fatally injured during a third attempted kidnapping. Therefore, plaintiffs assert the following claims: summary execution, torture, cruel, inhuman, or degrading treatment, arbitrary detention, wrongful death, assault and battery, two counts of intentional infliction of emotional distress and negligent failure to prevent summary execution, arbitrary detention, cruel, inhuman or degrading treatment, torture, wrongful death, and assault and battery.

The District Court granted the defendants’ motions to dismiss, stating, among other things, that the complaints would require the Court to rule on foreign policy, which the political question doctrine prohibits. The Plaintiffs appealed to this ruling.

Related developments

A writ of certiorari was denied on 17 April 2006.

Legally relevant facts

In 1970, leader of the Chilean leftist coalition Salvador Allende, won the Presidential elections. The US was wary of this and it was alleged that top US policymakers wanted to prevent Allende from taking power. Plans were made to either induce Allende’s opponents in Chile to prevent his assumption of power by engaging in political, economic and propaganda activities or to actively encourage the Chilean military to move against Allende. According to the complaint, Ambassador Korry was authorised in October 1970 to encourage a military coup and he reported to Kissinger that ‘General Schneider would have to be neutralised, by displacement if necessary’ for any coup to be successful. According to the compliant, the CIA worked with several coup plotters, including Roberto Viaux and Camilo Valenzuela, who were provided with money and arms. The complaint states that the CIA was informed on 14 October 1970 that Viaux planned to kidnap Schneider and that the defendants ‘never gave any instruction to leave General Schneider unharmed’. After two unsuccessful kidnapping attempts, Schneider was fatally injured during a third attempted kidnapping by members of General Viaux’s faction on 22 October 1970. Viaux and others were eventually convicted by a Chilean Court (pp. 2-4).

Core legal questions

In their appeal brief, the plaintiffs appealed against several aspects of the District Court’s ruling. Most importantly, the plaintiffs challenged the District Court’s assessment that the complaint can only be regarded within the context of US foreign policy. The claims, the plaintiffs held, do not challenge US policy, but ‘concerns only the wrongfulness of a criminal homicide and kidnapping allegedly planned and directed by the Defendant’. Thus, they argue that the political question doctrine does not apply to this case. Also, the plaintiffs dispute the substitution of the United States for Kissinger without holding the hearing that the law requires, the assessment that Kissinger could not be held liable under the Torture Victims Protection Act and the conclusion that the United States is immune from suits when it commits violations of jus cogens norms.

Specific legal rules and provisions

Paragraphs 1346(b), 1350 [Alien Tort Claims Act] and 2679(b)(2) of Title 28 of the US Code.
US Torture Victim Protection Act.
Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure.
Articles I and II of the US Constitution.

Court's holding and analysis

The Court only assessed in depth the political question doctrine, as this led to the conclusion that District Court had correctly ruled that it lacked jurisdiction. It held that the alleged decisions taken by Kissinger and other top officials were made within the context of Cold War policy making when, officials of the executive branch determined that it was in the best interest of the US to prevent the establishment of a Communist government in the Western Hemisphere. According to the Court, the political question doctrine excludes from judicial review those controversies which revolve around policy choices constitutionally committed for resolution by the Congress or the Executive branch (p. 10). Since the claims cannot be viewed separately from the context of foreign policy towards Chile in 1970, the Court held that there are no legal standards for the resolution of the claims (p. 13) and that ruling on this matter would show the Court’s disrespect for the other branches of government (p. 14). It concluded its ruling by emphasising that the Constitution allocated sufficient instruments to Congress to draw limits upon the executive’s activities. Therefore, the Court reasons, political questions should be dealt with by the political branches, not the judiciary (p. 19

Further analysis

Choper and Mesquite Ceia wrote on the ‘political question doctrine’. Verdier & Voeten addressed the development of state sovereignty in international law. Pines wrote the role of the Attorney-General in cases like these. And from The National Security Archive of The George Washington University documents can be retrieved relating to the Military Coup and US involvement in Chile.

J. H. Choper, ‘The Political Question Doctrine: Suggested Criteria’, SSRN, 21 July 2005.

E. M. Ceia, ‘The applicability of the political question doctrine in theforeign affairs field: should international treaties be regardedas non-justiciable acts?’, Academia.edu, June 2007.

P. Verdier and E. Voeten, ‘How Does Customary International Law Change? The Case of State Immunity’, SSRN, 14 July 2012.

D. L. Pines, ‘Are Even Torturers Immune from Suit?: How Attorney General Opinions Shield Government Employees from Civil Litigation and Criminal Prosecution’, Wake Forest Law Review, 2008, vol. 43, pp. 93-154.

P. Kornbluh, ‘Chile and the United States: Declassified Documents Relating to the Military Coup, September 11, 1973’, The National Security Archive of The George Washington University:, 1998.

Instruments cited

Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.
US Torture Victim Protection Act, 1991.
US Federal Rules of Civil Procedure.
Constitution of the United States, 17 September 1789.

Related cases

Supreme Court of the United States, Baker v. Carr, Case No. 6, Appeal from the US District Court for the Middle District of Tennessee, (369 U.S. 186, 1962), 26 March 1962.
US Court of Appeals for the District of Columbia Circuit, Laura Gonzalez-Vera et al. v. Henry Alfred Kissinger et al., Case No. 05-5017, Appeal from the United States District Court for the District of Columbia (No. 02cv02240), 9 June 2006.
Supreme Court of the United States, Laura Gonzalez-Vera et al. v. Henry Kissinger et al., Case No. 06-692, On Petition for a Writ of Certiorari to the US Court of Appeals for the District Court of Columbia Circuit, January 2007.