Schneider, Rene' v. Kissinger, Henry A.

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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.