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SCHNEIDER v. KISSINGER

March 30, 2004.

RENÉ SCHNEIDER, et al., Plaintiffs,
v.
HENRY A. KISSINGER, et al., Defendants



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

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. Page 2

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.

  I. BACKGROUND FACTS*fn3

  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 Page 3 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, Page 4 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. Id.

  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 Page 5 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, was Page 6 eventually convicted by a Chilean military court on charges of kidnaping and conspiring to cause a coup.

 II. LEGAL STANDARDS

  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). Page 7

 III. ANALYSIS

  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 Page 8 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." Page 9

 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. ...


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