Judicial Immunity for the Assassins

by Jacob G. Hornberger
Apr. 27, 2015

In the wake of President Obama's apology for the killing of two Western hostages in a drone assassination in Pakistan, people might be wondering if it will be possible for surviving family members to recover in a legal action against the assassins for the wrongful death of their loved ones.

The answer is unequivocally no. The reason is that long ago, the judicial branch of the federal government, acquiescing to the overwhelming power of the national-security branch of the government, decided to erect a wall of immunity around CIA assassinations.

The Supreme Court called this wall of immunity the "political question doctrine." The Court said that since federal judges are incompetent to analyze matters relating to foreign policy and "national security," they would not hold any U.S. official responsible for what would ordinarily be considered criminal offenses, so long as the officials claimed that the act was related to "national security."

Moreover, the federal courts made it clear that the national-security branch was the final determiner of what constitutes "national security." In other words, once U.S. officials cited those two words after an assassination, kidnapping, illegal surveillance, no doubt even rape -- that would be the end of the matter. There would be no judicial second-guessing when it came to the political question of what constitutes "national security."

Consider, for example, the CIA's orchestration of a kidnapping-assassination scheme in 1970 against a Chilean man named Rene Schneider, which I detailed in an article entitled "The CIA's Murder of Rene Schneider."

Who was Schneider? He was the commanding general of the entire Chilean armed forces. He was akin to the Chairman of the Joint Chiefs of Staff here in the United States.

Why did the CIA orchestrate his kidnapping-assassination? He was standing in the way of a Chilean military coup that the CIA and other U.S. officials were planning for Chile. The reason they wanted a coup was to oust the democratically elected president of Chile, Salvador Allende, from power and replace him with a military dictator.

Schneider said no to the CIA. He said that he had taken an oath to support and defend the constitution of Chile, which prohibited a military coup as a legal way to oust a democratically elected president from office.

The CIA later said that it wasn't responsible for his assassination because the CIA just wanted him kidnapped, not killed. That was clearly a lie though because there was never any possibility that the kidnappers were going to release Schneider, given the fact that he would then re-assume his position as head of the Chilean armed forces, where he would continue to stand in the way of the illegal and unconstitutional coup that the CIA was orchestrating.

Meanwhile, at the Pentagon’s School of the Americas, U.S. national-security state officials were teaching their Chilean counterparts that Schneider was wrong -- that Chilean military and intelligence forces had a moral duty to remove their democratically elected president from office since his policies posed a grave threat to "national security." (As I point out in my new book Regime Change: The JFK Assassination, that same mindset manifested itself in the assassination of President John F. Kennedy seven years before the Schneider assassination.)

When Schneider's children later sued U.S. officials for the wrongful death of their father, guess what the U.S. federal courts said. You guessed it: Political question doctrine! We're not competent to delve into a complex area like foreign policy, not even on political assassinations of high government officials, the federal judges said. That's just far beyond our expertise. Case dismissed. (After losing their case in U.S. Courts, the Schneider family sought relief in the Inter-American Commission on Human Rights, where their petition is pending.)

There is no doubt that the federal judiciary would hold the same way on political assassinations carried out by the CIA against U.S. government officials as well as American citizens. This was confirmed by the dismissal of a federal-court action brought by family members of American citizen Anwar al Awlaki, who was assassinated by the CIA on grounds of "national security."

The truth is that the "political question doctrine" is a total cop-out. It's a made-up judicial doctrine to avoid interfering with the national-security state's omnipotent power. The doctrine is found nowhere in the Constitution.

After all, when a cop assassinates a person -- say, by shooting the victim in the back -- he's charged (sometimes) with murder and he's also subject to being sued by surviving family members. In such cases, the federal judiciary doesn't say, "Police operations are beyond our expertise. We will not permit anyone to interfere with or second-guess police assassinations."

Why the difference in treatment?

It's because of the overwhelming power of the national-security branch of the government. As Michael J. Glennon points out in his deeply insightful book National Security and Double Government, the Pentagon, the CIA, and the NSA will permit the other three branches of the federal government to maintain the aura of traditional, constitutional governmental control so long as they don't cross any red lines by interfering in a fundamental way with the operations of the national-security branch -- the most powerful of the four branches of the federal government.

After all, who wants to jack with a branch of the government that has had the omnipotent power to assassinate people ever since its inception in 1947?
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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.