René Schneider et al. v. Henry A. Kissinger et al.

Court	United States District Court for the District of Columbia, United States
Case number	CIV.A. 01-1902(RMC)
Decision title	Memorandum Opinion
Decision date	30 March 2004
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	Memorandum Opinion

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. Also, the Court held that Kissinger had acted within the constraints of his position of National Security Adviser and that therefore the defendant should be the United States, not Kissinger personally. However, the Court held that the United States enjoyed immunity for the alleged crimes. Therefore, the case was dismissed.

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 defendants moved to dismiss, stating most importantly that the political question doctrine renders non-justiciable all of the defendants claims.

Related developments

The Court of Appeals confirmed the District Court’s dismissal of the case on 28 June 2005. 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 (p. 255). 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 (p. 256). 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 (p. 257).

Core legal questions

The Court had to assess the motions to dismiss as filed by the defendants. The defendants based this motion on the political question doctrine, stating that the plaintiffs had requested the Court to rule on matters of foreign policy which ought to remain within the exclusive domain of the Executive branch. Moreover, they argued that sovereign immunity barred the claims against the United States and that no cognisable claim had been stated against Kissinger. The plaintiffs countered that the political question doctrine is inapplicable to mere tort claims, that the United States had implicitly waivered its sovereign immunity and that Kissinger was not acting within the scope of his employment when he allegedly committed the torts at issue and is not entitled to qualified immunity.

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.

Court's holding and analysis

After applying the factors enumerated by the Supreme Court in Baker v. Carr to the present case, the Court found that this case was non-justiciable. The Court held that this claim cannot be viewed separately from the context of the United States’ conduct of its foreign relations in the 1970s (p. 260). The Constitution determines that foreign policy should be conducted by the ‘political’ departments of the Government. This conduct should not be subjected to judicial inquiry or decision (pp. 259, 263). Also, the Court stated that no legal standard exists under which such an assessment of such foreign policy decision can be made (pp. 261-262). By ruling on this case, the Court furthermore stated, the Judiciary would express a lack of respect, not only to the then officials who made foreign policy decisions but also to Congress, which investigated CIA activity in Chile during the 1970s (p. 264).

Also, the Court held that Kissinger was acting within the scope of his employment as National Security Adviser and therefore, the United States was substituted for him as the only defendant (p. 264). Subsequently, the claims against the US were dismissed because of the doctrine of sovereign immunity (p. 268).

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.

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.