The Political Question Strikes Again: D.C. Circuit Dismisses Case Against Kissinger

Extending its string of decisions applying the political question doctrine to U.S. foreign policy, the U.S Court of Appeals for the D.C. Circuit Friday dismissed another lawsuit by a group fo Chileans alleging that former U.S. Secretary of State Henry Kissinger was responsible for their torture, imprisonment, and abuse during the coup that brought Pinochet to power.

The court’s decision in Gonzalez-Vera v. Kissinger here pretty much follows its earlier 2005 decision dismissing similar lawsuits against Kissinger. In those cases, the D.C. Circuit applied the political question to alleged actions by the U.S. government prior to Pinochet’s assumption of power. In this new case, the the plaintiffs argued the political question doctrine should not apply to alleged actions by the U.S. government after Pinochet came to power and to claims made under a narrow class of widely recognized international norms (e.g. torture and extrajudicial killing).

The plaintiffs have alleged and challenged drastic measures taken by the United States and Kissinger in order to implement United States policy with respect to Chile. For the court to evaluate the legal validity of those measures would require us to delve into questions of policy “textually committed to a coordinate branch of government.” Id. It is of no moment that the acts alleged in this case took place after the coup. True, as the plaintiffs state, those acts “could not have been committed in furtherance of any policy decision to support Pinochet’s rise to power,” but the difference between actions taken to place Pinochet in power and actions taken to keep him in power does not a viable distinction make: Both types of actions, if they occurred, were “inextricably intertwined with the underlying” foreign policy decisions constitutionally committed to the political branches.

We need not quarrel with the plaintiffs’ assertion that certain claims for torture may be adjudicated in the federal courts as provided in the TVPA, see28 U.S.C. § 1350 note. We simply observe that such a claim, like any other, may not be heard if it presents a political question.