Laura Gonzalez-Vera et al. v. Kissinger et al.

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	No. 05-5017
Decision title	Appeal from the United States District Court for the District of Columbia
Decision date	9 June 2006
Parties	Laura Gonzalez-Vera, and others Henry Alfred Kissinger (in his individual capacity and as National Security Advisor and Secretary of State), and others
Categories	Human rights violations, Torture, War crimes
Keywords	illegal detention, jurisdiction, murder, war crimes, foreign interference, human rights abuses, immunity
Links	Appeal from the United States District Court for the District of Columbia

Summary

After the Chilean military staged a coup d’état in September 1973, elected President Salvador Allende was replaced with a military junta, chaired by Augusto Pinochet. During his time in office, widespread human rights violations were reported. In this case, the plaintiffs sought to establish the responsibility of the United States, more particularly former National Security Adviser and former Secretary of State Henry Kissinger, for these human rights violations. According to several victims and family of victims, the United States played an important role in the military coup, for example by funding and assisting the military.

The District Court had dismissed the claim on its merits, but the Court of Appeals held that the Court did not even have jurisdiction. Under US law, claims regarding strictly political questions, for example regarding foreign policy and defense, are barred. The Court held that this claim regarded measures taken to implement foreign policy and that a judge should not rule on this. Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics.

Procedural history

On 13 November 2002, Plaintiffs brought a law suit against Henry Kissinger under the Alien Tort Claims Act (ATCA, Paragraph 1350 of Title 28 of the US Code), the Torture Victim Protection Act (TVPA, See ATCA note), common law and customary international law. They sought relief for, among other things, torture, false imprisonment, wrongful death and intentional infliction of emotional distress. The United States moved to dismiss the complaint for lack of subject matter jurisdiction, because it raised a political question. Alternatively, the United States argued that the plaintiffs had failed to state a claim upon which relief could be granted. The District Court held that the claim was justiciable, but rejected the claim on the merits, holding that the claims against the United States were barred by sovereign immunity and that Kissinger had acted within the scope of his employment and that therefore the Westfall Act barred the TVPA claim against him. Even if this would not have been the case, the District Court held, the plaintiffs had failed to state a claim under the TVPA because they did not allege Kissinger had acted “under color of foreign law”, which is a prerequisite for application of the TVPA.

Related developments

The Court of Appeals denied a petition for panel rehearing and rehearing en banc without recorded dissent. A petition for a writ of certiorari was filed, as well as a brief for the respondents in opposition. On 28 February 2007 the Supreme Court rejected the petition for writ of certiorari.

Legally relevant facts

In September 1973, Chilean military officers staged a coup d’état and ousted the elected President, Salvador Allende. The military junta, chaired by Augusto Pinochet, repressed and attempted to eliminate individuals opposed to Pinochet’s regime. The plaintiffs in this case seek relief from the United States, as they claim that the United States, most importantly former National Security Adviser and former Secretary of State Henry Kissinger, played a role in these human rights violation, for example by funding and assisting the perpetrators. In particular, they alleged that Kissinger ‘purposefully acted outside of the proper channels of Congressional oversight of covert operations’ to assist and establish contacts with known terrorists and ‘authorized the CIA to assist the military regime. This suit was filed after the release the Hinchey Report on CIA activities in Chile, which suggested that Kissinger was aware of human rights violations committed in Chile.

Core legal questions

The Court of Appeals was asked by the plaintiffs to reverse the judgment of the District Court. They presented three grounds for this. Firstly, they argued that sovereign immunity does not bar their claims against the United States. Secondly, they held that they were entitled to discovery and thereby entitled to assess all relevant documents on US involvement in Chile, to demonstrate Kissinger was not acting within the scope of his employment. Thirdly, they maintained that therefore the Westfall Act did not bar their claim under the ACTA. Lastly, they stated a claim under the TVPA. The Government also disagreed with the District Court, as the government maintained that the case was nonjusticiable under the political question doctrine, as this case would require the Court to pass judgment on a matter of foreign policy and national security, which subjects are committed to the political branches. Also, the government argues that the case is nonjusticiable because of a lack of judicially discoverable and manageable standards for resolving it.

Specific legal rules and provisions

US Alien Tort Claims Act.
US Torture Victim Protection Act.

Court's holding and analysis

The Court dismissed the appeal, but presented other grounds for dismissal of the claim than the District Court had in first instance. Whereas the District Court had considered the case to be justifiable, the Court of Appeals applied the ‘political’ question doctrine and held that the Court had no jurisdiction in this case.

The Court referred to the judgment in the Schneider v. Kissinger case. In that case, the Court of Appeals had established that the claim that the United States and Kissinger, in conjunction with certain Chilean officers, had facilitated the kidnapping and torturing of a Chilean commander-in-chief challenged ‘foreign policy decisions of the United States within the province of political branches’ (p. 7). The plaintiffs had argued that the Schneider case was different, as it dealt with the ‘policy decision to support Pinochet’s rise to power’, whereas the present case challenged ‘specific acts of tortured, committed after the military government was already in place’ (pp. 5-6). The Court stated that ‘the plaintiffs have alleged and challenged drastic measures taken in order to implement United States policy.’ Evaluating the legal validity of these measures would breach the separation of power, according to the Court (p. 7).

Further analysis

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

Instruments cited

US Alien Tort Claims Act, Paragraph 1350 of 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.

Related cases

US District Court for the District Court of Columbia, René Schneider et al. v. Henry A. Kissinger et al., Case no. CIV.A. 01-1902(RMC), Memorandum Opinion, 30 March 2004.
US Court of Appeals for the District of Columbia, René Schneider et al. v. Henry Alfred Kissinger and United States of America et al., Case No. 04-5199, Appeal from the United States District Court, 28 June 2005.