United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2005 Decided June 28, 2005
No. 04-5199
RENE' SCHNEIDER, ET AL.,
APPELLANTS
v.
HENRY ALFRED KISSINGER AND
UNITED STATES OF AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01902)
Laura Rotolo, student counsel, argued the cause appellants.
With her on the briefs were Michael E. Tigar, and Alison Stites,
Christine Parsadaian, Courtney J. Nogar, Debra L.
Spinelli-Hays, James B. Cowden, Karen Corrie, Melissa
Mandor, Timothy L. Foden, Jennifer Dodenhoff, and Aaron
Lloyd, student counsel.
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Daniel Meron, Acting Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Barbara L. Herwig, Assistant
Director.
2
Before: SENTELLE , HENDERSON and ROGERS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: René and Raúl Schneider,
surviving sons of deceased Chilean General René Schneider,
together with José Pertierra, personal representative of the estate
of General Schneider, brought this action in United States
District Court for the District of Columbia against the United
States and Henry Kissinger, who at the time of the relevant
events was the National Security Advisor to the President of the
United States. The complaint alleged in nine counts, all of them
directed against both defendants, that Kissinger and the United
States had caused, in conjunction with Chilean persons not
named as defendants, the kidnapping, torture, and death of
Plaintiffs-Appellants’ decedent. The District Court granted the
motion of Defendants-Appellees to dismiss Appellants’
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure for lack of jurisdiction and failure to
state a claim upon which relief could be granted. Plaintiffs filed
this appeal. Because we agree with the District Court that the
courts lack jurisdiction over nonjusticiable questions raised by
the complaint, we affirm the grant of dismissal pursuant to Rule
12(b)(1).
I. Background
Appellants filed their original complaint on September 10,
2001, identifying their relationship to the deceased general and
claiming against Kissinger, the United States, and Richard
Helms (former Director of the CIA). That complaint alleged
that in 1970 the leader of the Chilean leftist coalition, Dr.
Salvador Allende, won a slight plurality of the vote (36.3%) in
Chile’s presidential election, and that this victory on his part
3
created the expectation that he would, in the following months,
be ratified by the Chilean congress as the first socialist president
of the country. According to the complaint, “[k]ey United States
policymakers” opposed the choice of Allende as president of
Chile and on September 8, 1970, “policymakers” began the
process of assessing “the pros and cons and problems and
prospects involved should a Chilean military coup be organized
. . . with U.S. assistance.” Compl. ¶ 16, Appellees’ Appendix
(App.) at 7. After receiving further information, on September
15, 1970, defendants Kissinger, Helms, and Attorney General
John Mitchell met with President Nixon. The President ordered
that steps be taken to prevent Allende from becoming president,
and specifically, that the CIA was to “play a direct role in
organizing a military coup d’etat in Chile” and do quickly
whatever was possible to prevent the seating of a possible
socialist president. Compl. ¶ 18, App. at 8. The President
expressed that he was “not concerned” about any risks involved,
authorized $10 million in funds to effect such a coup, and
required a plan of action be drafted within 48 hours. Id.
The complaint further alleged that efforts to prevent
Allende from achieving the presidency proceeded on two tracks.
“Track I” was a covert political, economic, and propaganda
campaign approved by a subcabinet level body of the executive
established to exercise political control over covert operations
abroad. Compl. ¶ 19, App. at 8. “Track II” activities were
undertaken in direct response to the President’s September 15
order and were directed “towards actively promoting and
encouraging the Chilean military to move against Allende.” Id.
In the following months, the tracks moved together. The United
States Ambassador to Chile was authorized to encourage a
military coup and to intensify contacts with Chilean military
officers in order to ascertain their willingness to support such a
coup. The Ambassador was also authorized to make contacts in
the Chilean military aware that the military would receive no
4
military assistance from the United States if Allende became
president of Chile. The Ambassador reported back that General
Schneider would be an impediment to achieving the goals
outlined in the President’s directive, and that he would have to
be neutralized. The complaint went on to allege particular acts
undertaken in furtherance of the goal of establishing a military
coup and claims for relief based on those actions, including the
kidnapping, torture, and killing of General Schneider. In all, the
complaint alleged seven claims: (1) summary execution; (2)
torture; (3) cruel, inhumane, or degrading treatment; (4)
arbitrary detention; (5) wrongful death; (6) assault and battery;
and (7) intentional infliction of emotional distress.
Defendants moved to dismiss the complaint on November
9, 2001; Plaintiffs responded on December 17, and Defendants
replied on January 31, 2002. Also, in November, the Attorney
General submitted a certification that Kissinger and Helms were
acting within the scope of federal employment at the time of the
incident out of which plaintiffs’ claims arose. Based on that
certification, the Attorney General asked the court to remove the
individual defendants from the case under the Westfall Act, 28
U.S.C. § 2679, and substitute the United States. In response to
the Westfall certification (and to Helms’s October 2002 death),
plaintiffs submitted an amended complaint on November 11,
2002. The amended complaint omitted the direct references to
President Nixon, deleted the deceased Helms as a defendant, and
added two new claims under the Federal Tort Claims Act, 28
U.S.C. § 1346(b)(1), one for “negligent failure to prevent
summary execution, arbitrary detention, cruel, inhumane, or
degrading treatment, torture, wrongful death, and assault and
battery,” and one for intentional infliction of emotional distress.
Am. Compl. ¶¶ 87-100, App. at 22-24. Defendants renewed
their motion to dismiss on December 12, 2002. Plaintiffs
responded to the motion on January 17, 2003. On March 30,
2004, the court granted the motion to dismiss pursuant to Rule
5
12(b)(1) on the basis that the Political Question Doctrine
rendered plaintiffs’ claims nonjusticiable. Schneider v.
Kissinger, 310 F. Supp. 2d. 251, 257-64 (D.D.C. 2004)
(applying Baker v. Carr, 369 U.S. 186, 210 (1962)). In the
alternative, the court held that the complaint failed under Rule
12(b)(6) because (1) Kissinger was immune under the Westfall
Act, Schneider, 310 F. Supp. 2d. at 264-67, and (2) the United
States was immune as sovereign, id. at 268-70. The court noted
early in its decision that it would rely on both the original and
amended complaints in making its decision, because “[t]he
parties ask the Court to consider all briefs, as they did not repeat
their initial arguments in response to the amended complaint.”
Id. at 254 nn. 2-3.
Because we determine that the court correctly ruled that it
lacked jurisdiction as a result of the application of the political
question doctrine, we need not reach the alternate ground. We
note in passing that some of the discussion of sovereign
immunity and Westfall questions bears on our application of the
Political Question Doctrine, but we need make no determination
of the questions raised by those theories in light of the
jurisdictional question that is determinative.
II. The Political Question Doctrine
The principle that the courts lack jurisdiction over political
decisions that are by their nature “committed to the political
branches to the exclusion of the judiciary” is as old as the
fundamental principle of judicial review. Antolok v. United
States, 873 F.2d 369, 379 (D.C. Cir. 1989) (separate opinion of
Sentelle, J.). In the venerable case of Marbury v. Madison, 5
U.S. (1 Cranch) 137 (1803), Chief Justice Marshall first
expressed the recognition by the judiciary of the existence of a
class of cases constituting “political act[s], belonging to the
executive department alone, for the performance of which entire
6
confidence is placed by our Constitution in the supreme
executive; and for any misconduct respecting which, the injured
individual has no remedy.” Id. at 164. In a continuing line
beginning with Chief Justice Marshall’s analysis in Marbury v.
Madison, this doctrine has evolved as a limitation of the
jurisdiction of the courts particularly applicable to foreign
relations. See Oetjen v. Cent. Leather Co., 246 U.S. 297, 302-03
(1918). Chief Justice Marshall, writing again in United States
v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), described questions
of foreign policy as “belong[ing] more properly to those . . . who
can place the nation in such a position with respect to foreign
powers as to their own judgment shall appear wise; to whom are
entrusted all its foreign relations; then to that tribunal whose
power as well as duty is confined to the application of the rule
which the legislature may prescribe for it.” Id. at 634 (emphasis
added).
Contemporary application of the Political Question
Doctrine, as recognized by the District Court, draws on the
analysis set forth in Baker v. Carr, 369 U.S. 186 (1962). The
Baker Court first recognized that “the political question doctrine
is ‘primarily a function of the separation of powers.’” Schneider
v. Kissinger, 310 F. Supp. 2d at 258 (quoting Baker, 369 U.S. at
210). In Baker, the Supreme Court enumerated six factors that
may render a case nonjusticiable under the Political Question
Doctrine:
Prominent on the surface of any case held to involve a
political question is found a [1] textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discoverable
and manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent
7
resolution without expressing lack of respect due coordinate
branches of government; or [5] an unusual need for
unquestioning adherence to a political decision already
made; or [6] the potentiality of embarrassment of
multifarious pronouncements by various departments on
one question.
Baker, 369 U.S. at 217. The Baker analysis lists the six factors
in the disjunctive, not the conjunctive. To find a political
question, we need only conclude that one factor is present, not
all. Nonetheless, we note that most of the factors counsel
against the exercise of jurisdiction over the controversy that
Plaintiff-Appellants bring to the court.
1. Textually demonstrable constitutional commitment to
other branches
First, the lawsuit raises policy questions that are textually
committed to a coordinate branch of government. As the
Supreme Court suggested in Marbury and made clear in later
cases, “The conduct of the foreign relations of our Government
is committed by the Constitution to the Executive and
Legislative – ‘the political’ – Departments of the Government,
and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision.”
Oetjen, 246 U.S. at 302. Otherwise put, “foreign policy
decisions are the subject of just such a textual commitment,” as
contemplated in Baker v. Carr. Comm. of the United States
Citizens v. Reagan, 859 F.2d 929, 933-34 (D.C. Cir. 1988).
Absent precedent, there could still be no doubt that
decision-making in the fields of foreign policy and national
security is textually committed to the political branches of
government. Article I, Section 8 of the Constitution provides an
enumeration of powers of the legislature. That article is richly
8
laden with delegation of foreign policy and national security
powers. Direct allocation of such power is found in Section 8,
Clause 1, “the Congress shall have the Power To . . . provide for
the Common Defence . . .; Clause 3, “To regulate commerce
with foreign nations”; Clause 10, “To define and punish Piracies
and Felonies committed on the High Seas and Offenses against
the Law of Nations”; Clause 11, “To declare War, grant Letters
of Marque and Reprisal, and make Rules concerning Captures
on Land and Water”; Clause 12, “To raise and support Armies
. . .”; Clause 13, “To provide and maintain a Navy”; Clause 14,
“to make Rules for the Government and Regulation of the land
and naval Forces”; Clause 15, “To provide for calling forth the
Militia to . . . repel Invasions”; Clause 16, “To provide for
organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service
of the United States.”
In addition to these direct allocations to the Congress of
these foreign relations and national security powers, other
sections and clauses of Article I bear on the subject to provide
further weight to the conclusion of contextual allocation. For
example, Section 9 of Article I provides for the suspension of
the writ of habeas corpus “when in cases of . . . invasion the
public safety may require it.” Section 10 allocates to the
Congress the authority to provide consent to individual states,
without which they may not “enter into any Agreement or
Compact with . . . a foreign Power, or engage in War . . . .” This
is not to mention the perhaps less direct but undeniably real
connection between national security and other powers of
Congress, such as that under Article I, Section 8, Clause 1, to
“lay and collect Taxes,” and Clause 2, to “borrow money on the
credit of the United States.”
Just as Article I of the Constitution evinces a clear textual
allocation to the legislative branch, Article II likewise provides
9
allocation of foreign relations and national security powers to
the President, the unitary chief executive. Article II, Section 2
provides, inter alia, that “the President shall be Commander in
Chief of the Army and Navy of the United States, and of the
Militia of the several States, when called into the actual Service
of the United States . . . .” That same section further provides
that the President “shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, . . . [and to] appoint
Ambassadors, other public Ministers and Consuls.” Section 3
of Article II provides that “he shall receive Ambassadors and
other public Ministers . . . and shall Commission all the Officers
of the United States,” including obviously the officers of the
military.
While the language of textual commitment of the President
is not as extensive as that relating to the legislative branch,
nonetheless it is plain that that commitment is real. Indeed, the
Supreme Court has described the President as possessing
“plenary and exclusive power” in the international arena and “as
the sole organ of the federal government in the field of
international relations . . . .” United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 320 (1936).
By contrast, in Article III defining the judicial power of the
United States the closest there is to a reference to foreign
relations is the extension of jurisdiction to “Cases affecting
Ambassadors, other public Ministers and Consuls.” U.S.
CONST ., Art. III, § 1. Obviously all this provides is jurisdiction
for adjudication of cases against those officers. It provides no
authority for policymaking in the realm of foreign relations or
provision of national security. It cannot then be denied that
decision-making in the areas of foreign policy and national
security is textually committed to the political branches.
10
Neither can it be gainsaid that the subject matter of the
instant case involves the foreign policy decisions of the United
States. In 1970, at the height of the Cold War, officials of the
executive branch, performing their delegated functions
concerning national security and foreign relations, determined
that it was in the best interest of the United States to take such
steps as they deemed necessary to prevent the establishment of
a government in a Western Hemisphere nation that in the view
of those officials could lead to the establishment or spread of
communism as a governing force in the Americas. This
decision may have been unwise, or it may have been wise. The
political branches may have since rejected the approach, or not.
In any event, that decision was classically within the province of
the political branches, not the courts. As the Supreme Court has
repeatedly reminded us, “[t]he 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.” Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 (1986). This is so because
“[t]he 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.’” Id. (quoting United States ex rel. Joseph v. Cannon,
642 F.2d 1373, 1379 (D.C. Cir. 1981)).
2. No judicially discoverable and manageable standards
The second criterion of the Baker six brings under the
nonjusticiable umbrella of political question any case as to
which there is “a lack of judicially discoverable and manageable
standards for resolving it.” 369 U.S. at 217. This factor, even
taken apart from the first factor, supports the District Court’s
conclusion that this case must be dismissed under Rule 12(b)(1).
As the District Court well understood, for a court to adjudicate
11
this case would be for that court to undertake the determination
of whether, 35 years ago, at the height of the Cold War between
the United States and the western powers on the one hand and
the expanding communist empire on the other, “it was proper for
an Executive Branch official . . . to support covert actions
against” a committed Marxist who was set to take power in a
Latin American country. Schneider, 310 F. Supp. 2d at 261-62.
Unlike the executive, the judiciary has no covert agents, no
intelligence sources, and no policy advisors. The courts are
therefore ill-suited to displace the political branches in such
decision-making.
As we have said before of other security considerations in
another context, “it is within the role of the executive to acquire
and exercise the expertise of protecting national security. It is
not within the role of the courts to second-guess executive
judgments made in furtherance of that branch’s proper role.”
Center for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918,
932 (D.C. Cir. 2003).
Appellants claim that the District Court erred in holding that
no standards exist for determining whether “it was proper for an
Executive Branch official . . . to support covert actions against
an undesirable figure who was set to take power in a foreign
nation.” Schneider, 310 F. Supp. 2d at 261-62. They assert that
the District Court “misconstrued Plaintiffs’ claims by framing
the issue as an attack on policy.” Appellants’ Br. at 14.
However, it is not at all clear to us why Appellants believe their
suit to be anything other than such an attack. They claim that
“the D.C. Circuit has held that courts should not invoke the
political question doctrine to avoid adjudication of a violation of
basic rights.” Id. However, the only case from this court which
they offer for that proposition is Ramirez de Arellano v.
Weinberger, 745 F.2d 1500 (D.C. Cir. 1984). In fact, that case
stands for nothing at all, as it was vacated by the Supreme Court
12
in Weinberger v. Ramirez de Arellano, 471 U.S. 1113 (1985).
After the remand, this Court reversed and sent the case back to
the District Court for dismissal, with no reinstatement of the
original opinion ever occurring. See Ramirez de Arellano v.
Weinberger, 788 F.2d 762 (D.C. Cir. 1986).
In the District Court, though not expressly before us,
Appellants had urged that “‘the standards for evaluating
wrongful death are well established’ . . . and that the ‘Court need
not depart from these in managing the instant action.’”
Schneider, 310 F. Supp. 2d at 261. We agree with the District
Court that this formulation of the issues is no help. As the
District Court stated, “[r]esolving the present lawsuit would
compel the court, at a minimum, to determine whether actions
or omissions by an Executive Branch officer in the area of
foreign relations and national security were ‘wrongful’ under
tort law.” Id. at 262. We agree with the District Court and the
Eleventh Circuit in Aktepe v. United States, 105 F.3d 1400, 1404
(11th Cir. 1997), that recasting foreign policy and national
security questions in tort terms does not provide standards for
making or reviewing foreign policy judgments. In Aktepe, the
Eleventh Circuit considered a case brought by Turkish sailors
alleging injuries and wrongful death suffered as a result of
missiles fired by a United States Navy vessel during North
Atlantic Treaty Organization training exercises. In holding that
the action was barred, inter alia, by the second Baker political
question factor, that Circuit noted that “in order to determine
whether the Navy conducted the missile-firing drill in a
negligent manner, a court would have to determine how a
reasonable military force would have conducted the drill.” Id.
The Aktepe court went on to observe “[a]s the Supreme Court
noted in a related context, ‘it is difficult to conceive of an area
of governmental activity in which the courts have less
competence.’” Id. (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)). Similarly here, in order to determine whether the
13
covert operations which allegedly led to the tragic death of
General Schneider were wrongful, the court would have to
define the standard for the government’s use of covert
operations in conjunction with political turmoil in another
country. There are no justiciably discoverable and manageable
standards for the resolution of such a claim.
3. Judicial resolution would require an initial policy
determination of a kind clearly for nonjudicial discretion
Without rehashing the constitutional separation of powers
concerns raised by the two Baker factors already discussed, we
note that the same sort of problems raise the third factor as well.
The District Court well stated the matter:
[P]laintiffs contend that “the Court is not here asked to pass
judgment on any perceived value or danger of the Allende
government to United States interests and need not make
any policy determination[.]” Pls.’ Opp. I at 15. While the
plaintiffs are correct that the Court might be able to avoid
evaluating the merits of a potential Allende Government in
1970, it would nonetheless be forced to pass judgment on
the means used by the United States to keep that
government from taking power.
Schneider, 310 F. Supp. 2d at 263. While we are not at all
convinced that we would be able to avoid evaluating the merits
of the potential Allende government in 1970, we are completely
in agreement with the District Court that we would be forced to
pass judgment on the policy-based decision of the executive to
use covert action to prevent that government from taking power.
Allying United States intelligence operatives with dissidents in
another country to kidnap a national of that country may be a
drastic measure. To determine whether drastic measures should
be taken in matters of foreign policy and national security is not
14
the stuff of adjudication, but of policymaking. As the Supreme
Court has emphasized, “the ‘nuances’ of ‘the foreign policy of
the United States . . . are much more the province of the
Executive Branch and Congress than of this Court.’” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000) (quoting
Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 196
(1983)).
Thus, we agree with the District Court that the third Baker
factor also counsels against jurisdiction over this case.
4. The court could not proceed without expressing a lack
of respect to coordinate branches of government
From what we have concluded as to the first three Baker
factors, it seems apparent to us that we could not determine
Appellants’ claims without passing judgment on the decision of
the executive branch to participate in the alleged covert
operations–participation in which, we note from the record, has
already been the subject of congressional investigation. We
therefore affirm the conclusion of the District Court that “[a]
court should refrain from entertaining a suit if it would be
unable to do so without expressing a lack of respect due to its
coequal Branches of Government.” 310 F. Supp. 2d at 264
(citing Baker v. Carr, 369 U.S. at 217) (other citations omitted).
5. Summary
For the reasons set forth above, we conclude that at least the
first four of the six Baker factors compel a determination that
this case raises political questions committed to the political
branches and therefore is beyond the jurisdiction of the courts.
Appellants counter the government’s political question
arguments by asserting that this case does not fall within the
Political Question Doctrine because “there is a difference
15
between policy and the implementation of policy, and . . . the
latter is within the realm of the judiciary to oversee.”
Appellants’ Br. at 12. For this proposition, they cite DKT
Memorial Fund Ltd. v. Agency for Int’l Dev., 810 F.2d 1236
(D.C. Cir. 1987), which stated, “whereas attacks on foreign
policymaking are nonjusticiable, claims alleging non-
compliance with the law are justiciable, even though the limited
review that the court undertakes may have an effect on foreign
affairs.” 810 F.2d at 1238.
Appellants are indeed correct that the DKT Memorial
opinion so stated. However, it did so on a record immediately
distinguishable from the controversy raised by the present
litigation. DKT Memorial concerned not the executive’s making
of a policy decision and implementing that decision, but rather
a challenge to the constitutionality of the manner in which an
agency sought to implement an earlier policy pronouncement by
the President. Indeed, after the jurisdictional decision in DKT
Memorial had ordered the matter remanded to the District Court,
the District Court’s decision on remand came before this Court
in a second appeal. We then made plain the narrowness of our
original jurisdictional holding:
In the present case, where the President acted under a
congressional grant of discretion as broadly worded as any
we are likely to see, and where the exercise of that
discretion occurs in the area of foreign affairs, we cannot
disturb his decision simply because some might find it
unwise or because it differs from the policies pursued by
previous administrations.
DKT Memorial Fund Ltd. v. Agency for Int’l Development, 887
F.2d 275, 281-82 (D.C. Cir. 1989). Thus, our ultimate
disposition of the DKT Memorial question supports rather than
undermines the District Court’s holding that the present case
16
falls within the realm of nonjusticiable political questions first
recognized in Marbury v. Madison and delineated in Baker v.
Carr.
III. Other Issues
Appellants halfheartedly make an ill-formed argument that
the actions of Defendant Kissinger in the Schneider/Allende
matter were ultra vires. Apparently it is their contention that, as
such, the entire Schneider/Allende matter therefore falls outside
the Political Question Doctrine. They offer us a single sentence
on the subject in their principal brief: “Plaintiffs maintain that
Defendant Kissinger’s actions were ultra vires.” Appellants’ Br.
at 12. This maintenance by plaintiffs is accompanied by a
footnote citing Linder v. Portocarrero, 963 F.2d 332, 336 (11th
Cir. 1992), for the proposition that “‘[t]he [sic] complaint
challenges neither the legitimacy of the United States foreign
policy toward the contras, nor does it require the court to
pronounce who was right and who was wrong in the Nicaraguan
civil war,’ but instead is ‘narrowly focused on the lawfulness of
the defendants’ conduct in a single incident.’” The footnote also
includes two other cases, Lamont v. Woods, 948 F.2d 825, 833
(2d Cir. 1991), and Population Inst. v. McPherson, 797 F.2d
1062, 1068-70 (D.C. Cir. 1986), each of which, like our decision
in DKT Memorial, supra, supports the proposition that foreign
policy decisions are outside the jurisdiction of the courts by
reason of the political question doctrine, but nonetheless permits
adjudication of administrative matters arising out of the
implementation of foreign policy. Not only do none of these
cases support the proposition that we can adjudicate an entire
line of foreign policy decisions, such as Appellants seek to bring
to court in the present case, but Appellants have not further
developed this argument for our adjudication.
17
In the District Court, as we noted above, Appellants’
amended complaint struck the language of the original
complaint alleging very specifically the personal involvement of
the President of the United States. Apparently they now are
attempting to argue that the acts of a foreign policy advisor are
not foreign policy and therefore do not come within the Political
Question Doctrine. In an apparent attempt to further this strange
maneuver, the amended complaint does include the words “ultra
vires” in its second paragraph to the following effect:
The documents show that the knowing practical assistance
and encouragement provided by the United States and the
official and ultra vires acts of Henry Kissinger resulted in
General Schneider’s summary execution, torture, cruel,
inhuman and degrading treatment, arbitrary detention,
assault and battery, negligence, intentional infliction of
emotional stress, and wrongful death.
Am. Compl. ¶ 2, App. at 161. The ultra vires language raises its
head again in the eighth claim for relief, which states that:
Plaintiffs argue in the alternative and without waiving their
ultra vires arguments, that at the time of the wrongful acts,
Defendant Kissinger and other United States agents were
employees of federal agencies, including the National
Security Council and Central Intelligence Agency, and were
acting within the scope of their office or employment.
Am. Compl. ¶ 90, App. at 181-82.
We understand the need of litigants at times to plead in the
alternative and even to plead inconsistently in the alternative.
Nonetheless, the language purporting not to waive ultra vires
“arguments” does not help a complaint that never alleges a
single claim for relief in ultra vires terms. Each of the claims
18
for relief alleges acts by the Defendants which in the amended
complaint consist only of the National Security Advisor and the
United States. Their joint actions together can hardly be called
anything other than foreign policy. It may be that Plaintiffs
intended to allege some other cause of action which might have
fallen outside the Political Question Doctrine, but this does not
change the questions before us into others than we have
discussed above.1
We caution that the lack of judicial authority to oversee the
conduct of the executive branch in political matters does not
leave the executive power unbounded. Granted, it is true, as
Chief Justice Marshall recognized in Marbury, that “the injured
individual has no remedy.” Marbury, 5 U.S. (1 Cranch) at 164.
Nonetheless, the nation has recompense, and the checks and
balances of the Constitution have not failed. The political
branches effectively exercise such checks and balances on each
other in the area of political questions.
If the executive in fact has exceeded his appropriate role in
the constitutional scheme, Congress enjoys a broad range of
authorities with which to exercise restraint and balance. We
catalogued above those authorities specifically related to
international relations and national security, but as we also noted
1
It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court
to do counsel’s work, create the ossature for the
argument, and put flesh on its bones. As we recently
said in a closely analogous context: Judges are not
expected to be mindreaders. Consequently, a litigant
has an obligation to spell out its arguments squarely
and distinctly, or else forever hold its peace.
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (internal
quotation marks omitted).
19
there, Congress wields the general power to lay and collect taxes
and to borrow money on the credit of the United States.
Without an appropriation from Congress to fund an undertaking,
the President cannot conduct any such undertaking. See Lichter
v. United States, 334 U.S. 742, 756 (“The constitutional power
of Congress to support the armed forces with equipment and
supplies is . . . clear and sweeping.”). Indeed, Congress has used
its appropriations power to draw limits upon the executive’s
activity in the area of foreign affairs. For example, in the
Boland Amendment to the Department of Defense
Appropriations Act, 1983, Pub. L. No. 97-377, § 793, 96 Stat.
1865 (1982), Congress proscribed the CIA from funding or
participating in efforts to overthrow the Nicaraguan government.
The Boland Amendment example is particularly striking in that
elements of the executive branch apparently violated these
congressional restraints. Thereafter, Congress exercised one of
its other powerful tools against executive overreaching:
congressional oversight. The alleged breach of the Boland
Amendment gave rise to the Iran/Contra proceedings, which in
time gave rise to investigations by an Independent Counsel
acting under authority conferred by Congress in the Ethics in
Government Act of 1978, as amended, 28 U.S.C. § 591 et seq.
(1988).
In the extreme case, Congress can repair to its authority
under Article I, Section 3 of the Constitution to bring
impeachment proceedings against an overreaching President. In
fact, with reference to the very administration at issue in this
case, Congress did just that.
In short, the allocation of political questions to the political
branches is not inconsistent with our constitutional tradition of
limited government and balance of powers. It is precisely
consistent, for it embodies limits and balances between the
political branches without the intrusion of the courts into areas
20
beyond our proper authority and expertise.
21
IV. Conclusion
For the reasons set forth above, we affirm the judgment of
the District Court dismissing this action for want of jurisdiction
pursuant to Rule 12(b)(1).
So ordered.