Judicial Deference to the Torturers

by Jacob G. Hornberger
Dec. 16, 2014

In case anyone is wondering whether any of the CIA's torture victims will be able to recover damages from CIA torturers, the answer is an unequivocal no. The federal judiciary decided a long time ago that it would not permit lawsuits brought by victims of the CIA or, for that matter, the U.S. military.

Among the best examples are two cases that came out of the Chilean military coup of 1973, a coup that was secretly engineered by the U.S. government, operating primarily through the CIA and the U.S. military establishment.

One case involved the kidnapping-murder of Chilean General Rene Schneider, who was the overall commander in chief of the Chilean armed forces during the Salvador Allende administration. Schneider angered the CIA because he refused to discuss the CIA's wish for a military coup that would oust Allende from power and install a military dictator in his stead.

The CIA's position was that it was the moral duty of Chile's national-security establishment to save Chile from Allende, a self-described Marxist who was embracing socialism in Chile and establishing good relations with the Soviet Union and Cuba, by ousting him in a coup.

Schneider's position was that as a military man, he had taken an oath to support and defend the constitution of his country. Since Allende had been legitimately elected in an election under the laws and constitution of Chile, Schneider would not use the military to engage in an illegal, unconstitutional act.

So, realizing that Schneider posed an insurmountable obstacle to its plans, the CIA orchestrated a plan that involved kidnapping Schneider and removing him from the scene, so that Allende would be forced to appoint a new commander of the Chilean armed forces, one who hopefully would be more compliant to what the CIA wanted. As part of the kidnapping plan, the CIA smuggled high-powered weapons into the country for use by the kidnappers and later delivered hush money to the kidnappers to keep the CIA's role in the event secret.

During the kidnapping attempt, Schneider, who was armed, fought back. He was badly outnumbered, however, and was shot dead.

Schneider's children later filed suit for wrongful death in U.S. District Court against various U.S. officials. They didn't get to first base. The federal judiciary dismissed the case, holding that since the matter involved a "political question," the federal courts lacked the competence to determine whether it was valid or not.

In other words, if the national security state deems it necessary to kidnap, murder, torture, or rape people as part of a foreign national-security state operation, the federal courts would not interfere by authorizing the victims or their families to seek damages for what was done.

The other case was a lawsuit brought in U.S. District Court by Joyce Horman, who was the widow of Charles Horman, an American citizen living in Chile who had been murdered in the first few days of coup. Horman was a leftist who shared the socialist philosophy that guided Allende and his followers. He was also working for a newspaper that focused on U.S. government involvement in Chilean affairs and, in fact, was investigating the Schneider murder, which no one knew at that point that the CIA had been involved in. Worst of all, while visiting the town of Vina del Mar at the start of the coup, Horman had come across evidence of U.S. complicity in the coup, which President Nixon and the U.S. national-security establishment were bound and determined to keep secret as a covert operation.

The State Department conducted a secret investigation that determined that U.S. intelligence may have played an "unfortunate" role in the murder of Horman as well as the murder of another American named Frank Teruggi. The State Department then proceeded to cover up that finding for some 25 years.

When Joyce Horman brought suit for the wrongful death of her husband, the federal courts summarily threw her case out of court, not permitting her to take one single deposition. They said that she hadn't provided enough evidence to support her claims. Never mind that under the federal judiciary's own rules, the judiciary was required to accept Horman's allegations as true for purposes of a motion to dismiss. And never mind that the only way that Horman could have secured such evidence was by piercing the secrecy of the CIA through depositions and other discovery provided by the Federal Rules of Judicial Procedure.

The Schneider and Horman lawsuits established that the federal courts were not going to tangle with the national-security state apparatus. Instead, it was clear that the military and the CIA would have omnipotent power to murder, torture, kidnap, and rape with impunity so long as they related it to some foreign-policy program or national-security state program.

Why? Why did the federal courts defer to the national-security state apparatus?

By the 1970s, everyone in Washington knew that there was a new sheriff in town or, to be more precise, a new branch of the federal government, one that was much more powerful than the other three branches. This new branch consists of the vast military establishment and the CIA.

President Eisenhower alluded to this phenomenon in his Farewell Address in 1960, the most amazing Farewell Address since George Washington's. Ike pointed out that the military-industrial complex was a new apparatus in America's federal governmental system and that, in fact, it posed a grave threat to America's democratic processes.

Three years later -- in December 1963, thirty days after the Kennedy assassination -- former President Truman made the same point about the CIA. Truman said that the CIA had become a sinister part of the federal government and had exceeded its original mission, which was simply to gather intelligence. He should know since he was the president who called the CIA into existence with the National Security Act of 1947.

The Chilean people discovered what Ike and Truman were talking about. Chile's governmental system was much the same as America's -- three branches of government along with an all-powerful military-intelligence establishment. Like most Americans, Chileans believed that the national-security establishment wasn't actually a separate branch but instead fell under the executive branch of the government.

On 9/11 1973, the Chilean people discovered how wrong they were. In fact, the military-intelligence establishment had become a separate branch within the federal government and the most powerful branch at that.

The battle was between the executive branch--i.e., Allende and a few of his supporters--and the national-security branch, which consisted of the entire armed forces and intelligence forces, including the army, navy, and air force.

Allende was holed up in the National Palace, which is akin to America's White House, along with dozens of his supporters. For a while Allende and his supporters were defending themselves with high-powered weapons, shooting at the tanks and troops that were surrounding them. At some point, Gen. Pinochet, who was in charge of the army, ordered the Air Force to bomb the National Palace. The few soldiers who refused to follow orders were shot, which encouraged the rest of the soldiers to fall into line and participate in the coup.

The result was never in doubt. In a battle between the executive branch and the national-security branch of the Chilean government, the military and intelligence forces easily prevailed. Allende refused to comply with Pinochet's unconditional surrender demand and committed suicide. The military rounded up the dozens of people who had been defending Allende from the palace, carted them away to military dungeons or concentration camps, and tortured, raped, or murdered them. In fact, tens of thousands of other Chileans who had committed the cardinal crime of believing in socialism suffered the same fate.

What message does that hold for Americans? That Ike was right, but not just insofar as Chile is concerned. Remember: The U.S. military and the CIA were teaching their counterparts in Chile that the national-security establishment of a country has the moral duty to protect the country from a president whose policies go awry.

And guess who the final arbiter on that issue is: yes, the national security establishment itself, not the president and not the Congress and not the judiciary! Like it or not, that's the system that the American people now live under, one in which the national-security establishment is clearly the most powerful branch of the government, the one to which the other three branches must naturally must defer on fundamental issues.

Today, people are wondering why President Obama refuses to criminally prosecute the CIA torturers even though the law clearly requires the president to do so. People are also wondering why Congress is keeping the entire 6,000 page torture report secret from the American people. People might be wondering why neither the president nor the Congress has done anything about the CIA's intentional destruction of its torture videotapes.

The answer might well like in Ike's warning and what happened in Chile. Sure, there is still a system of checks and balances, one that involves all four branches. The Congress can investigate the CIA and issue reports and deny funding. The president can still recommend a criminal prosecution in federal court of some low-level CIA operatives. But everyone knows that it can't push the military and intelligence branch too far because everyone knows who is going to win in an all-out battle. Just ask the Chileans.

Last year Chile's federal judiciary apologized for the deferential attitude that it showed to Pinochet's national security establishment, the same deferential attitude that the U.S. federal judiciary shows toward America's national-security establishment. Don't expect a similar apology from the U.S. federal judiciary.
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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.