The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
This lawsuit challenges covert actions allegedly directed by
high-level United States officials in connection with an attempted coup
in Chile in 1970 designed to prevent the election of Dr. Salvadore
Allende as Chile's first Socialist President.*fn1 General René
Schneider, then Commander-in-Chief of the Chilean Army, opposed military
intervention in the electoral process. As a result, the United States
allegedly plotted with Chilean nationals to neutralize him. General
Schneider was shot during a failed kidnaping attempt on October 22, 1970,
and died from his wounds a few days later. Two of General Schneider's
children and his Personal Representative, suing on behalf of his estate,
seek to hold the United States and Henry A. Kissinger, former Assistant
for National Security Affairs to President Richard M. Nixon, responsible
for the General's death.
Pending before the Court are the defendants' motion to dismiss and
renewed motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.*fn2 The plaintiffs oppose these
motions and also move to strike the United States Attorney General's
certification that Dr. Kissinger was acting in his official capacity when
the conduct alleged in the amended complaint took place. For the
following reasons, the Court concludes that this case is non-justiciable
because the plaintiffs' claims present a political question committed to
the Executive and Legislative Branches. In the alternative, the Court
finds that the FTCA requires substitution of the United States for Dr.
Kissinger and that the plaintiffs' allegations are barred by the doctrine
of sovereign immunity. The motions to dismiss will be granted, the motion
to strike will be denied, and the case will be dismissed.
Plaintiffs Rene and Raul Schneider are two of General Schneider's sons.
Plaintiff Jose Pertierra is the Personal Representative of General
Schneider's estate and is suing in that capacity. Defendant Dr. Kissinger
served as National Security Advisor to former President Nixon
from 1969 to 1973.*fn4 The United States Attorney General
certified on November 2, 2001, that Dr. Kissinger was acting "within the
scope of federal office or employment at the time of the incident out of
which the plaintiffs' claims arose" and now seeks to substitute the
United States for Dr. Kissinger as a defendant. Cert. of John Lodge Euler
(attached to Defs.' Mot. I).
As alleged by the plaintiffs, the following events have had a profound
impact on Chile's political, social, and economic environment. On
September 4, 1970, Dr. Allende won a slight plurality of the votes
(36.3%) in Chile's presidential election. Because there was no clear
victor, the Constitution of Chile provided that its Congress, in joint
session, would determine who would become President from the two highest
contenders. The Chilean Congress traditionally had confirmed the
candidate who received the greatest number of popular votes; hence, it
was expected that the Congress would ratify Dr. Allende's election on
October 24, 1970.
Key officials in the United States Government, including former
President Nixon, wanted to prevent Dr. Allende, a self-proclaimed
Marxist, from taking power.*fn5 On September 12,
1970, U.S. Ambassador to Chile Edward Korry advised, "[The] Chilean
military will not, repeat not, move to prevent Dr. Allende's accession,
barring [the] unlikely situation of national chaos and widespread
violence." Compl. II ¶ 18 (internal quotation marks omitted).
President Nixon then met with Dr. Kissinger, Mr. Helms, and Attorney
General John Mitchell on September 15, 1970, and "ordered that the
necessary steps be taken to prevent Dr. Allende from becoming President
of Chile. Particularly, President Nixon instructed the CIA to `play a
direct role in organizing a military coup d'etat in Chile.'" Compl. I
¶ 18. President Nixon stated that "he was `not concerned' about the
`risks involved'" with his decision and allocated $10 million to effect
a military coup. Id.
The efforts to prevent Dr. Allende from assuming office allegedly
proceeded on two tracks.
"Track I" comprised covert political, economic,
and propaganda activities approved by the 40
Committee, a sub-cabinet level body of the
Executive Branch chaired by Defendant Kissinger
whose overriding purpose was to exercise control
over covert operations abroad. The activities were
designed to induce Dr. Allende's opponents in
Chile to prevent his assumption of power, either
through political or military means. "Track II"
activities, in turn, were directed "towards
actively promoting and encouraging the Chilean
military to move against Allende."
Compl. II ¶ 19. The plaintiffs assert that only Dr. Kissinger and
top CIA officials were informed of the second track. See id.
¶ 20. Specifically, the State Department was not informed of it.
In October 1970, Ambassador Korry was authorized to encourage a
military coup and to intensify contacts with Chilean military officers to
assess their potential support. He reported to
Dr. Kissinger that "General Schneider would have to be neutralized,
by displacement if necessary" for any coup to be successful. Id.
¶ 22 (internal quotation marks omitted). Acting on this information,
the CIA contacted and worked with several coup plotters, including
retired Chilean General Roberta Viaux and General Camilo Valenzuela, who
was Commander of the Santiago Garrison. Within the first weeks of
October, the defendants came to regard General Viaux as "the best hope
for carrying out the CIA's Track II mandate." Id. ¶ 28
(internal quotation marks omitted). General Viaux had ties to Patria
y Libertad, a right-wing paramilitary group in Chile. Between
September 4 and October 24, 1970, the CIA provided Patria y
Libertad with $38,000. Id. ¶ 27. Around October 13,
1970, the CIA gave General Viaux $20,000 in cash and promised him a life
insurance policy of $250,000. Id. ¶ 28. In addition, U.S.
Army Attache Paul Wimert delivered to members of General Valenzuela's
faction six tear gas grenades, submachine guns, and ammunition.
Id. ¶¶ 36-37.
On October 14, 1970, the CIA was informed that General Viaux planned to
kidnap General Schneider within 48 hours to effect the coup. The amended
complaint alleges that the defendants "never gave any instruction to
leave General Schneider unharmed" and that "[i]t was foreseeable . . .
that the kidnaping would create a grave risk of death to General
Schneider and consequent harm to his family." Id. ¶ 30. On
October 16, 1970, the CIA ordered its operatives in Chile to "continue
their work of promoting a successful coup in spite of `other policy
guidance' that they may receive from other branches of the U.S.
government." Id. ¶ 33.
After two unsuccessful kidnaping attempts, General Schneider was
fatally injured during a third attempted kidnaping by members of General
Viaux's faction on October 22, 1970. He died from his gunshot wounds
three days later. Id. at ¶ 43. General Viaux, among others,
eventually convicted by a Chilean military court on charges of
kidnaping and conspiring to cause a coup.
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the
plaintiffs bear the burden of proving by a preponderance of the evidence
that the Court has subject matter jurisdiction to hear this case.
Jones v. Exec. Office of the President, 167 F. Supp.2d 10, 13
(D.D.C. 2001). In deciding such a motion, the Court must accept as true
all of the factual allegations set forth in the amended complaint;
however, such allegations "`will bear closer scrutiny in resolving a
12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state
a claim." Grand Lodge of the Fraternal Order of Police v.
Ashcroft, 185 F. Supp.2d 9, 13-14 (D.D.C. 2001) (quoting 5A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1350). The Court may consider matters outside the pleadings.
Lipsman v. Sec'y of the Army, No. 02-0151, 2003 U.S. Dist. LEXIS
4882, at *6 (D.D.C. Mar. 31, 2003).
A motion to dismiss for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure tests the legal sufficiency of the
amended complaint. The Court must accept as true all of the plaintiffs'
well-pled factual allegations and draw all reasonable inferences in favor
of the plaintiff; however, the Court does not need to accept as true any
of the plaintiffs' legal conclusions. Alexis v. District of
Columbia, 44 F. Supp.2d 331, 336-37 (D.D.C. 1999). "[An amended]
complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff[s] can prove no set of facts in
support of [their] claim which would entitle [them] to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The plaintiffs seek to hold the United States and Dr. Kissinger liable
for the attempted kidnaping and death of General Schneider under various
U.S. laws and treaties, the "law of nations";*fn6 Chilean law; statutes
and the common law of the District of Columbia; and, in the
alternative, the FTCA. They assert nine claims in their amended
complaint: 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 move to dismiss, arguing that the political
question doctrine renders non-justiciable all of the plaintiffs' claims;
that sovereign immunity bars the claims against the United States; and
that the amended complaint fails to state a cognizable claim against Dr.
Kissinger, in part because of substitution under the FTCA. The plaintiffs
counter that the political question doctrine is inapplicable to mere
torts claims; that the United States has implicitly waived its sovereign
immunity; and that Dr. 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.
A. Political Question Doctrine
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 of the Executive
Branch. The Judiciary is particularly ill suited
to make such decisions, as "courts are
fundamentally underequipped to formulate national
policies or develop standards for matters not
legal in nature."
Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230
(1986) (quoting United States ex rel Joseph v. Cannon,
642 F.2d 1373, 1379 (D.C. Cir. 1981) (footnote omitted), cert. ...